Yahya related to me from Malik from Ibn Shihab that Said ibn al-
Musayyab said, "There is no usury in animals. There are three things
forbidden in animals:
al-madamin, al-malaqih and habal al-habala. Al-
madamin is the sale of what is in the wombs of female camels. Al-
malaqih is the sale of the breeding qualities of camels" (i.e. for
stud).
Malik said, "No one should buy a specified animal when
it is concealed from him or in another place, even if he has already
seen it, very recently or not so recently, and was pleased enough with
it to pay its price in cash."
Malik said, "That is
disapproved of because the seller makes use of the price and it is not
known whether or not those goods are found to be as the buyer saw them
or not. For that reason, it is disapproved of. There is no harm in it
if it is described and guaranteed."
Yahya related to me from Malik from Zayd ibn Aslam from Said ibn
al-Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, forbade bartering live animals for meat.
Yahya related to me from Malik from Da'ud ibn al-Husayn that he
heard Said ibn alMusayyab say, "Part of the gambling of the people of
Jahiliya was bartering live animals for slaughtered meat, for instance
one live sheep for two slaughtered sheep."
Yahya related to me from Malik from Abu'z-Zinad that Said ibn al-
Musayyab said, "Bartering live animals for dead meat is forbidden."
Abu'z-Zinad said, "I said to Said ibn Musayyab, 'What do you think of
a man buying an old camel for 10 sheep?' " Said said, "If he buys it
to slaughter it, there is no good in it." Abu'z-Zinad added, "All the
people (i.e. companions) that I have seen forbade bartering live
animals for meat."
Abu'z-Zinad said, "This used to be written
in the appointment letters of governors in the time of Aban ibn Uthman
and Hisham ibn Ismail."
Yahya related to me from Malik from Ibn Shihab from Abu Bakr ibn
Abd ar-Rahman ibn al-Harith ibn Hisham from Abu Masud al-Ansari that
the Messenger of Allah, may Allah bless him and grant him peace,
forbade the sale price of a dog, the earnings of a prostitute and the
earnings of a fortune teller.
By the earnings of a prostitute
he meant what a woman was given for fornication. The earnings of a
fortune teller were what he was given to tell a fortune.
Malik said, "I disapprove of the price of a dog, whether it is a
hunting dog or otherwise because the Messenger of Allah, may Allah
bless him and grant him peace, forbade the price of a dog."
Yahya related to me from Malik that he had heard that the
Messenger of Allah, may Allah bless him and grant him peace, forbade
'selling and lending.'
Malik said, "The explanation of what
that meant is that one man says to another, 'I will take your goods
for such-and-such if you lend me such-and-such.' If they agree to a
transaction in this manner, it is not permitted. If the one who
stipulates the loan abandons his stipulation, then the sale is
permitted."
Malik said, "There is no harm in exchanging linen
from Shata, for garments from Itribi, or Qass, or Ziqa. Or the cloth
of Herat or Merv for Yemeni cloaks and shawls and such like as one for
two or three, from hand to hand or with delayed terms. If the goods
are of the same kind, and deferment enters into the transaction, there
is no good in it."
Malik said, "It is not good unless they
are different, and the difference between them is clear. When they
resemble each other, even if the names are different, do not take two
for one with delayed terms, for instance two garments of Herat for one
from Merv or Quhy with delayed terms, ortwo garments of Furqub for one
from Shata. All these sorts are of the same description, so do not buy
two for one, on delayed terms."
Malik said, "There is no harm
in selling what you buy of things of this nature, before you complete
the deal, to some one other than the person from whom you purchased
them if the price was paid in cash."
USC-MSA web (English) reference : Book 31, Hadith 69
Hadith 513600
Chapter 31: Business Transactions - كتاب البيوع
Yahya related to me from Malik from Yahya ibn Said that al-Qasim
ibn Muhammad said, ''I heard Abdullah ibn Abbas say, when a man asked
him about a man making an advance on some garments and then wanting to
sell them back before taking possession of them, 'That is silver for
silver,' and he disapproved of it."
Malik said, "Our opinion
is - and Allah knows best that was because he wanted to sell them to
the person from whom he had bought them for more than the price for
which he bought them. Had he sold them to some one other than the
person from whom he had purchased them, there would not have been any
harm in it."
Malik said, "The generally agreed on way of
doing things among us concerning making an advance for slaves, cattle
or goods is that when all of what is to be sold is described and an
advance is made for them for a date, and the date falls due, the buyer
does not sell any of that to the person from whom he has purchased it
for more than the price which he advanced for it before he has taken
full possession of what he has advanced for. It is usury if he does.
If the buyer gives the seller dinars or dirhams and he profits with
them, then, when the goods come to the buyer and he does not take them
into his possession but sells them back to their owner for more than
what he advanced for them, the outcome is that what he has advanced
has returned to him and has been increased for him."
Malik
said, "If someone advances gold or silver for described animals or
goods which are to be delivered before a named date, and the date
arrives, or it is before or after the date, there is no harm in the
buyer selling those goods to the seller, for other goods, to be taken
immediately and not delayed, no matter how extensive the amount of
those goods is, except in the case of food because it is not halal to
sell it before he has full possession of it. The buyer can sell those
goods to some one other than the person from whom he purchased them
for gold or silver or any goods. He takes possession of it and does
not defer it because if he defers it, that is ugly and there enters
into the transaction what is disapproved of:
delay for delay. Delay
for delay is to sell a debt against one man for a debt against another
man."
Malik said, "If someone advances for goods to be
delivered after a time, and those goods are neither something to be
eaten nor drunk, he can sell them to whomever he likes for cash or
goods, before he takes delivery of them, to some one other than the
person from whom he purchased them. He must not sell them to the
person from whom he bought them except in exchange for goods which he
takes possession of immediately and does not defer."
Malik
said, "If the delivery date for the goods has not arrived, there is no
harm in selling them to the original owner for goods which are clearly
different and which he takes immediate possession of and does not
defer."
Malik spoke about the case of a man who advanced
dinars or dirhams for four specified pieces of cloth to be delivered
before a specified time and when the term fell due, he demanded
delivery from the seller and the seller did not have them. He found
that the seller had cloth but inferior quality, and the seller said
that he would give him eight of those cloths. Malik said, "There is no
harm in that if he takes the cloths which he offers him before they
separate. It is not good if delayed terms enter into the transaction.
It is also not good if that is before the end of the term, unless he
sells him cloth which is notthetypeof cloth for which he made an
advance.
Yahya related to me from Malik that he had heard that a man said
to another, "Buy this camel for me immediately so that I can buy him
from you on credit." Abdullah ibn Umar was asked about that and he
disapproved of it and forbade it.
Yahya related to me from Malik that he had heard that al-Qasim
ibn Muhammad was asked about a man who bought goods for 10 dinars cash
or fifteen dinars on credit. He disapproved of that and forbade it.
Malik said that if a man bought goods from a man for either
10 dinars or 15 dinars on credit, that one of the two prices was
obliged on the buyer. It was not to be done because if he postponed
paying the ten, it would be 15 on credit, and if he paid the ten, he
would buy with it what was worth fifteen dinars on credit.
Malik said that it was disapproved of for a man to buy goods from
someone for either a dinar cash or for a described sheep on credit and
that one of the two prices was obliged on him. It was not to be done
because the Messenger of Allah, may Allah bless him and grant him
peace, forbade two sales in one sale. This was part of two sales in
the one sale.
Malik spoke about a man saying to another, "'I
will either buy these fifteen sa of ajwa dates from you, or these ten
sa of sayhani dates or I will buy these fifteen sa of inferior wheat
or these ten sa of Syrian wheat for a dinar, and one of them is
obliged to me.' Malik said that it was disapproved of and was not
halal. That was because he obliged him ten sa of sayhani, and left
them and took fifteen sa of ajwa, or he was obliged fifteen sa of
inferior wheat and left them and took ten sa of Syrian wheat. This was
also disapproved of, and was not halal. It resembled what was
prohibited in the way of two sales in one sale. It was also included
under the prohibition against buying two for one of the same sort of
food."
Yahya related to me from Malik from Abu Hazim ibn Dinar from Said
ibn al-Musayyab that the Messenger of Allah, may Allah bless him and
grant him peace, forbade the sale with uncertainty in it.
Malik said, "An example of one type of uncertain transaction and risk
is that a man intends the price of a stray animal or escaped slave to
be fifty dinars. A man says, 'I will take him from you for twenty
dinars.' If the buyer finds him, thirty dinars goes from the seller,
and if he does not find him, the seller takes twenty dinars from the
buyer."
Malik said, "There is another fault in that. If that
stray is found, it is not known whether it will have increased or
decreased in value or what defects may have befallen it. This
transaction is greatly uncertain and risky."
Malik said,
"According to our way of doing things, one kind of uncertain
transaction and risk is selling what is in the wombs of females -
women and animals - because it is not known whether or not it will
come out, and if it does come out, it is not known whether it will be
beautiful or ugly, normal or disabled, male or female. All that is
disparate. If it has that, its price is such-and-such, and if it has
this, its price is such-and-such."
Malik said, "Females must
not be sold with what is in their wombs excluded. That is that, for
instance, a man says to another, 'The price of my sheep which has much
milk is three dinars. She is yours for two dinars while I will have
her future offspring.' This is disapproved because it is an uncertain
transaction and a risk."
Malik said, "It is not halal to sell
olives for olive oil or sesame for sesame oil, or butter for ghee
because muzabana comes into that, because the person who buys the raw
product for something specified which comes from it, does not know
whether more or less will come out of that, so it is an uncertain
transaction and a risk."
Malik said, "A similar case is the
selling of ben-nuts for ben-nut oil. This is an uncertain transaction
because what comes from the ben-nut is ben-oil. There is no harm in
selling ben-nuts for perfumed ben because perfumed ben has been
perfumed, mixed and changed from the state of raw ben-nut oil."
Malik, speaking about a man who sold goods to a man on the
provision that there was to be no loss for the buyer, (i.e. if the
buyer could not re-sell the goods they could go back to the seller),
said, "This transaction is not permitted and it is part of risk. The
explanation of why it is so, is that it is as if the seller hired the
buyer for the profit if the goods make a profit. If he sells the stock
at a loss, he has nothing, and his efforts are not compensated. This
is not good. In such a transaction, the buyer should have a wage
according to the work that he has contributed. Whatever there is of
loss or profit in those goods is for and against the seller. This is
only when the goods are gone and sold. If they do not go, the
transaction between them is null and void."
Malik said, "As
for a man who buys goods from a man and he concludes the sale and then
the buyer regrets and asks to have the price reduced and the seller
refuses and says, 'Sell it and I will compensate you for any loss.'
There is no harm in this because there is no risk. It is something he
proposes to him, and their transaction was not based on that. That is
what is done among us."
USC-MSA web (English) reference : Book 31, Hadith 75
Hadith 513650
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنْ مُحَمَّدِ بْنِ يَحْيَى بْنِ حَبَّانَ، وَعَنْ أَبِي الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنِ الْمُلاَمَسَةِ وَالْمُنَابَذَةِ .
Yahya related to me from Malik from Muhammad ibn Yahya ibn Habban
and from Abu'z-Zinad from al-Araj from Abu Hurayra that the Messenger
of Allah, may Allah bless him and grant him peace, forbade mulamasa
and munabadha.
Malik said, "Mulamasa is when a man can feel a
garment but is not allowed to unfold it or examine what is in it, or
he buys by night and does not know what is in it. Munabadha is that a
man throws his garment to another, and the other throws his garment
without either of them making any inspection. Each of them says, 'this
is for this. 'This is what is forbidden of mulamasa and munabadha."
Malik said that selling bundles with a list of their contents
was different from the sale of the cloak concealed in a bag or the
cloth folded up and such things. What made it different was that it
was a common practice and it was what people were familiar with, and
what people had done in the past, and it was still among the permitted
transactions and trading of people in which they saw no harm because
in the sale of bundles with a list of contents without undoing them,
an uncertain transaction was not intended and it did not resemble
mulamasa.
USC-MSA web (English) reference : Book 31, Hadith 76
Hadith 513660
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
" الْمُتَبَايِعَانِ كُلُّ وَاحِدٍ مِنْهُمَا بِالْخِيَارِ عَلَى صَاحِبِهِ مَا لَمْ يَتَفَرَّقَا إِلاَّ بَيْعَ الْخِيَارِ " .
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, "Both parties in a business transaction have the right of
withdrawal as long as they have not separated, except in the
transaction called khiyar."
Malik said, "There is no
specified limit nor any matter which is applied in this case according
to us."
USC-MSA web (English) reference : Book 31, Hadith 80
Hadith 513670
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي مَالِكٌ، أَنَّهُ بَلَغَهُ أَنَّ عَبْدَ اللَّهِ بْنَ مَسْعُودٍ، كَانَ يُحَدِّثُ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" أَيُّمَا بَيِّعَيْنِ تَبَايَعَا فَالْقَوْلُ مَا قَالَ الْبَائِعُ أَوْ يَتَرَادَّانِ " .
Malik related to me that he had heard that Abdullah ibn Masud
used to relate that the Messenger of Allah, may Allah bless him and
grant him peace, said, "When two parties dispute about a business
transaction, the seller's word is taken, or they make an agreement
among themselves.
Malik spoke about someone who sold goods to
a man, and said at the contracting of the sale, 'I will sell to you
provided I consult so-and-so. If he is satisfied, the sale is
permitted. If he dislikes it, there is no sale between us.' They made
the transaction on that basis. Then the buyer regretted before the
seller consulted the person.
Malik said, "That sale is
binding on them according to what they described. The buyer has no
right of withdrawal, and it is binding on him, if the person whom the
seller stipulated to him, permits it."
Malik said, "The way
of doing things among us about a man who buys goods from another and
they differ about the price, and the seller says, 'I sold them to you
for ten dinars,' and the buyer says, 'I bought them from you for five
dinars,' is that it is said to the seller, 'If you like, give them to
the buyer for what he said. If you like, swear by Allah that you only
sold your goods for what you said.' If he swears it is said to the
buyer, 'Either you take the goods for what the seller said, or you
swear by Allah that you bought them only for what you said.' If he
swears, he is free to return the goods. That is when each of them
testifies against the other."
Yahya related to me from Malik from Abu'z-Zinad from Busr ibn
Said from Ubayd, Abu Salih, the mawla of as-Saffah that he said, "I
sold drapery to the people of Dar Nakhla on credit. Then I wanted to
go to Kufa, so they proposed that I reduce the price for them and they
would pay me immediately . I asked Zayd ibn Thabit about that, and he
said, 'I order you not to accept increase or to give to anybody.' "
Yahya related to me from Malik from Uthman ibn Hafs ibn Khalda
from Ibn Shihab from Salim ibn Abdullah that Abdullah ibn Umar was
asked about a man who took a loan from another man for a set term. The
creditor reduced the debt, and the man paid it immediately Abdullah
ibn Umar disliked that, and forbade it.
Malik related to me that Zayd ibn Aslam said, "Usury in the
Jahiliyya was that a man would give a loan to a man for a set term.
When the term was due, he would say, 'Will you pay it off or increase
me?' If the man paid, he took it. If not, he increased him in his debt
and lengthened the term for him ."
Malik said, "The
disapproved of way of doing things about which there is no dispute
among us, is that a man should give a loan to a man for a term, and
then the demander reduce it and the one from whom it is demanded pay
it in advance. To us that is like someone who delays repaying his debt
after it is due to his creditor and his creditor increases his debt."
Malik said, "This is nothing else but usury. No doubt about it."
Malik spoke about a man who loaned one hundred dinars to a man for
two terms. When it was due, the person who owed the debt said to him,
"Sell me some goods, whose price is one hundred dinars in cash for one
hundred and fifty on credit." Malik said, "This transaction is not
good, and the people of knowledge still forbid it."
Malik
said, "This is disapproved of because the creditor himself gives the
debtor the price of what the man sells him, and he defers repayment of
the hundred of the first transaction for the debtor for the term which
is mentioned to him in the second transaction, and the debtor
increases him with fifty dinars for his deferring him. That is
disapproved of and it is not good. It also resembles the hadith of
Zayd ibn Aslam about the transactions of the people of the Jahiliyya.
When their debts were due, they said to the person with the debt,
'Either you pay in full or you increase it.' If they paid, they took
it, and if not they increased debtors in their debts, and extended the
term for them."
USC-MSA web (English) reference : Book 31, Hadith 84
Hadith 513710
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنْ أَبِي الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَطْلُ الْغَنِيِّ ظُلْمٌ وَإِذَا أُتْبِعَ أَحَدُكُمْ عَلَى مَلِيءٍ فَلْيَتْبَعْ " .
Yahya related to me from Malik from Abu'z-Zinad from al Araj from
Abu Hurayra that the Messenger of Allah, may Allah bless him and grant
him peace, said, "Delay in payment by a rich man is injustice, but
when one of you is referred for payment to a wealthy man, let him be
referred."
86 Malik related to me from Musa ibn Maysara that he heard a man
ask Said ibn al-Musayyab, "I am a man who sells for a debt." Said
said, "Do not sell except for what you take to your camel."
Malik spoke about a person who bought goods from a man provided that
he provide him with those goods by a specific date, either in time for
a market in which he hoped for their saleability, or to fulfil a need
at the time he stipulated. Then the seller failed him about the date,
and the buyer wanted to return those goods to the seller. Malik said,
"The buyer cannot do that, and the sale is binding on him. If the
seller does bring the goods before the completion of the term, the
buyer cannot be forced to take them."
Malik spoke about a
person who bought food and measured it. Then some one came to him to
buy it and he told him that he had measured it for himself and taken
it in full. The new buyer wanted to trust him and accept his measure.
Malik said, "Whatever is sold in this way for cash has no harm in it
but whatever is sold in this way on delayed terms is disapproved of
until the new buyer measures it out for himself. The sale with delayed
terms is disapproved of because it leads to usury and it is feared
that it will be circulated in this way without weight or measure. If
the terms are delayed it is disapproved of and there is no
disagreement about that with us."
Malik said, "One should not
buy a debt owed by a man whether present or absent, without the
confirmation of the one who owes the debt, nor should one buy a debt
owed to a man by a dead person even if one knows what the deceased man
has left. That is because to buy that is an uncertain transaction and
one does not know whether the transaction will be completed or not
completed."
He said, "The explanation of what is disapproved
of in buying a debt owed by someone absent or dead, is that it is not
known what unknown debtor may be connected to the dead person. If the
dead person is liable for another debt, the price which the buyer gave
on strength of the debt may become worthless."
Malik said,
"There is another fault in that as well. He is buying something which
is not guaranteed for him, and so if the deal is not completed, what
he paid becomes worthless. This is an uncertain transaction and it is
not good."
Malik said, "One distinguishes between a man who
is only selling what he actually has and a man who is being paid in
advance for something which is not yet in his possession. The man
advancing the money brings his gold which he intends to buy with. The
seller says, 'This is 10 dinars. What do you want me to buy for you
with it?' It is as if he sold 10 dinars cash for 15 dinars to be paid
later. Because of this, it is disapproved of. It is something leading
to usury and fraud."
Yahya related to me from Malik from Ibn Shihab from Abu Bakr ibn
Abd ar-Rahman ibn al-Harith ibn Hisham that the Messenger of Allah,
may Allah bless him and grant him peace, said, "Whenever a man sells
wares and then the buyer becomes bankrupt and the seller has not taken
any of the price and he finds some of his property intact with the
buyer, he is more entitled to it than anyone else. If the buyer dies,
then the seller is the same as other creditors with respect to it."
Malik related to me from Yahya ibn Said from Abu Bakr ibn
Muhammad ibn Amr ibn Hazm from Umar ibn Abdal-Aziz from Abu Bakr ibn
Abd ar-Rahman ibn al-Harith ibn Hisham from Abu Hurayra that the
Messenger of Allah, may Allah bless him and grant him peace, said, "If
anyone goes bankrupt, and a man finds his own property intact with
him, he is more entitled to it than anyone else."
Malik spoke
about a man who sold a man wares, and the buyer went bankrupt. He
said, "The seller takes whatever of his goods he finds. If the buyer
has sold some of them and distributed them, the seller of the wares is
more entitled to them than the creditors. What the buyer has
distributed does not prevent the seller from taking whatever of it he
finds. It is the seller's right if he has received any of the price
from the buyer and he wants to return it to take what he finds of his
wares, and in what he does not find, he is like the creditors."
Malik spoke about some one who bought spun wool or a plot of land,
and then did some work on it, like building a house on the plot of
land or weaving the spun wool into cloth. Then he went bankrupt after
he had bought it, and the original owner of the plot said, "I will
take the plot and whatever structure is on it." Malik said, "That
structure is not his. However, the plot and what is in it that the
buyer has improved is appraised. Then one sees what the price of the
plot is and how much of that value is the price of the structure. They
are partners in that. The owner of the plot has as much as his
portion, and the creditors have the amount of the portion of the
structure."
Malik said, "The explanation of that is that the
value of it all is fifteen hundred dirhams. The value of the plot is
five hundred dirhams, and the value of the building is one thousand
dirhams. The owner of the plot has a third, and the creditors have
two-thirds."
Malik said, "It is like that with spinning and
other things of the same nature in these circumstances and the buyer
has a debt which he cannot pay. This is the behaviour in such cases."
Malik said, "As for goods which have been sold and which the
buyer does not improve, but those goods sell well and have gone up in
price, so their owner wants them and the creditors also want to seize
them, then the creditors choose between giving the owner of the goods
the price for which he sold them and not giving him any loss and
surrendering his goods to him.
"If the price of the goods has
gone down, the one who sold them has a choice. If he likes, he can
take his goods and he has no claim to any of his debtor's property,
and that is his right. If he likes, he can be one of the creditors and
take a portion of his due and not take his goods. That is up to him."
Malik said about someone who bought a slave-girl or animal
and she gave birth in his possession and the buyer went bankrupt, "The
slave-girl or the animal and the offspring belong to the seller unless
the creditors desire it. In that case they give him his complete due
and they take it."
USC-MSA web (English) reference : Book 31, Hadith 89
Hadith 513750
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ زَيْدِ بْنِ أَسْلَمَ، عَنْ عَطَاءِ بْنِ يَسَارٍ، عَنْ أَبِي رَافِعٍ، مَوْلَى رَسُولِ اللَّهِ صلى الله عليه وسلم أَنَّهُ قَالَ اسْتَسْلَفَ رَسُولُ اللَّهِ صلى الله عليه وسلم بَكْرًا فَجَاءَتْهُ إِبِلٌ مِنَ الصَّدَقَةِ قَالَ أَبُو رَافِعٍ فَأَمَرَنِي رَسُولُ اللَّهِ صلى الله عليه وسلم أَنْ أَقْضِيَ الرَّجُلَ بَكْرَهُ فَقُلْتُ لَمْ أَجِدْ فِي الإِبِلِ إِلاَّ جَمَلاً خِيَارًا رَبَاعِيًا . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" أَعْطِهِ إِيَّاهُ فَإِنَّ خِيَارَ النَّاسِ أَحْسَنُهُمْ قَضَاءً " .
Yahya related to me from Malik from Zayd ibn Aslam from Ata ibn
Yasar that Abu Rafi, the mawla of the Messenger of Allah, may Allah
bless him and grant him peace, said, "The Messenger of Allah, may
Allah bless him and grant him peace, borrowed a young camel and then
the camels of sadaqa came to him." Abu Rafi said, "He ordered me to
repay the man his young camel. I said, 'I can only find a good camel
in its seventh year in the camels.' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'Give it to him. The best of
people are those who discharge their debts in the best manner.' "
Malik related to me from Humayd ibn Qays al-Makki that Mujahid
said, "Abdullah ibn Umar borrowed some dirhams from a man, then he
discharged his debt with dirhams better than them. The man said, 'Abu
Abdar-Rahman. These are better than the dirhams which I lent you.'
Abdullah ibn Umar said, 'I know that. But I am happy with myself about
that.' "
Malik said, "There is no harm in a person who has
borrowed gold, silver, food, or animals, taking to the person who lent
it, something better than what he lent, when that is not a stipulation
between them nor a custom. If that is by a stipulation or promise or
custom, then it is disapproved, and there is no good in it."
He said, "That is because the Messenger of Allah, may Allah bless him
and grant him peace, discharged his debt with a good camel in its
seventh year in place of a young camel which he borrowed, and Abdullah
ibn Umar borrowed some dirhams, and repaid them with better ones. If
that is from the goodness of the borrower, and it is not by a
stipulation, promise, or custom, it is halal and there is no harm in
it."
Yahya related to me from Malik that he had heard that Umar ibn
al-Khattab said that he disapproved of one man lending another food on
the provision that he gave it back to him in another city. He said,
"Where is the transport?"
USC-MSA web (English) reference : Book 31, Hadith 92
Hadith 513780
Chapter 31: Business Transactions - كتاب البيوع
And Malik related to me that he had heard that a man came to
Abdullah ibn Umar and said, "Abu Abd ar-Rahman, I gave a man a loan
and stipulated that he give me better than what I lent him." Abdullah
ibn Umar said, "That is usury." Abdullah said, "Loans are of three
types:
A free loan which you lend by which you desire the pleasure of
Allah, and so you have the pleasure of Allah. A free loan which you
lend by which you desire the pleasure of your companion, so you have
the pleasure of your companion, and a free loan which you lend by
which you take what is impure by what is pure, and that is usury." He
said, "What do you order me to do, Abu Abd ar-Rahman?" He said, "I
think that you should tear up the agreement. If he gives you the like
of what you lent him, accept it. If he gives you less than what you
lent him, take it and you will be rewarded. If he gives you better
than what you lent him, of his own good will, that is his gratitude to
you and you have the wage of the period you gave him the loan."
Yahya related to me from Malik from Nafi that he heard Abdullah
ibn Umar say, "If someone lends something, let the only condition be
that it is repaid."
Malik related to me that he had heard that Abdullah ibn Masud
used to say, "If someone makes a loan, they should not stipulate
better than it. Even if it is a handful of grass, it is usury."
Malik said, "The generally agreed on way of doing things among us
is that there is no harm in borrowing any animals with a set
description and itemisation, and one must return the like of them.
This is not done in the case of female slaves. It is feared about that
that it will lead to making halal what is not halal, so it is not
good. The explanation of what is disapproved of in that, is that a man
borrow a slave-girl and have intercourse with her as seems proper to
him. Then he returns her to her owner. That is not good and it is not
halal. The people of knowledge still forbid it and do not give an
indulgence to any one in it."
USC-MSA web (English) reference : Book 31, Hadith 95
Hadith 513810
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
" لاَ يَبِعْ بَعْضُكُمْ عَلَى بَيْعِ بَعْضٍ " .
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, "Do not let any of you bid against each other."
Malik related to me from Abu'z-Zinad from al-Araj from Abu
Hurayra that the Messenger of Allah, may Allah bless him and grant him
peace, said, "Do not go out to meet the caravans for trade, do not bid
against each other, outbidding in order to raise the price, and a
townsman must not buy on behalf of a man of the desert, and do not tie
up the udders of camels and sheep so that they appear to have a lot of
milk, for a person who buys them after that has two recourses open to
him after he milks them. If he is pleased with them, he keeps them and
if he is displeased with them, he can return them along with a sa of
dates."
Malik said, "The explanation of the words of the
Messenger of Allah, may Allah bless him and grant him peace, according
to what we think - and Allah knows best - 'do not bid against each
other,' is that it is forbidden for a man to offer a price over the
price of his brother when the seller has inclined to the bargainer and
made conditions about the weight of the gold and he has declared
himself not liable for faults and such things by which it is
recognised that the seller wants to make a transaction with the
bargainer. This is what he forbade, and Allah knows best."
Malik said, "There is no harm, however, in more than one person
bidding against each other over goods put up for sale."
He
said, "Were people to leave off haggling when the first person started
haggling, an unreal price might be taken and the disapproved would
enter into the sale of the goods. This is still the way of doing
things among us."
USC-MSA web (English) reference : Book 31, Hadith 97
Hadith 513830
Chapter 31: Business Transactions - كتاب البيوع
قَالَ مَالِكٌ عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنِ النَّجْشِ .
Malik said, from Nafi from Abdullah ibn Umar that the Messenger
of Allah, may Allah bless him and grant him peace, forbade najsh.
Malik said, "Najsh is to offer a man more than the worth of his
goods when you do not mean to buy them and someone else follows you in
bidding."
USC-MSA web (English) reference : Book 31, Hadith 98
Hadith 513840
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ دِينَارٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَجُلاً، ذَكَرَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم أَنَّهُ يُخْدَعُ فِي الْبُيُوعِ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" إِذَا بَايَعْتَ فَقُلْ لاَ خِلاَبَةَ " . قَالَ فَكَانَ الرَّجُلُ إِذَا بَايَعَ يَقُولُ لاَ خِلاَبَةَ .
Yahya related to me from Malik from Abdullah ibn Dinar from
Abdullah ibn Umar that a man mentioned to the Messenger of Allah, may
Allah bless him and grant him peace, that he was always being cheated
in business transactions. The Messenger of Allah, may Allah bless him
and grant him peace, said, "When you enter a transaction, say, 'No
trickery.' So whenever that man entered a transaction, he would say,
'No trickery.' "
Malik related to me that Yahya ibn Said heard Said ibn al-
Musayyab say, "When you come to a land where they give full measure
and full weight, stay there. When you come to a land where they
shorten the measure and weight, then do not stay there very long."
Malik related to me from Yahya ibn Said that he heard Muhammad
ibn al-Munkadir say, "Allah loves his slave who is generous when he
sells, and generous when he buys, generous when he repays, and
generous when he is repaid."
Malik said about a man who
bought camels or sheep or dry goods or slaves or any goods without
measuring precisely, "There is no buying without measuring precisely
in anything which can be counted . "
Malik said about a man
who gave a man goods to sell for him and set their price saying, "If
you sell them for this price as I have ordered you to do, you will
have a dinar (or something which he has specified, which they are both
satisfied with), if you do not sell them, you will have nothing,"
"There is no harm in that when he names a price to sell them at and
names a known fee. If he sells the goods, he takes the fee, and if he
does not sell them, he has nothing."
Malik said, "This is
like saying to another man, 'If you capture my runaway slave or bring
my stray camel, you will have such-and-such.' This is from the
category of reward, and not from the category of giving a wage. Had it
been from the category of giving a wage, it would not be good."
Malik said, "As for a man who is given goods and told that if he
sells them he will have a named percentage for every dinar, that is
not good because whenever he is a dinar less than the price of the
goods, he decreases the due which was named for him. This is an
uncertain transaction. He does not know how much he will be given."
Malik related to me that he asked Ibn Shihab about a man who
hired an animal, and then re-hired it out for more than what he hired
it for. He said, "There is no harm in that."
Malik related to me from Zayd ibn Aslam that his father said,
"Abdullah and Ubaydullah, the sons of Umar ibn al-Khattab went out
with the army to Iraq. On the way home, they passed by Abu Musa al-
Ashari who was the amir of Basra. He greeted them and made them
welcome, and told them that if there was anything he could do to help
them, he would do it. Then he said, 'There is some of the property of
Allah which I want to send to the amir al-muminin, so I will lend it
to you, and you can buy wares from Iraq and sell them in Madina. Then
give the principal to the amir al-muminin, and you keep the profit.'
They said that they would like to do it, and so he gave them the money
and wrote to Umar ibn al-Khattab to take the money from them. When
they came to sell they made a profit, and when they paid the principal
to Umar he asked, 'Did he lend everyone in the army the like of what
he lent you?' They said, 'No.' Umar ibn al-Khattab said, 'He made you
the loan, because you are the sons of the amir al-muminin, so pay the
principal and the profit.' Abdullah was silent. Ubaydullah said, 'You
do not need to do this, amir al-muminin. Had the principal decreased
or been destroyed, we would have guaranteed it.' Umar said, 'Pay it.'
Abdullah was silent, and Ubaydullah repeated it. A man who was sitting
with Umar said, 'Amir al-muminin, better that you make it a qirad.
'Umar said, 'I have made it qirad.' Umar then took the principal and
half of the profit, and Abdullah and Ubaydullah, the sons of Umar ibn
al-Khattab took half of the profit."
Malik related to me from al-Ala ibn Abd ar-Rahman from his father
from his father that Uthman ibn Affan gave him some money as qirad to
use provided the profit was shared between them.
USC-MSA web (English) reference : Book 32, Hadith 2
Hadith 513900
Chapter 33: Sharecropping - كتاب المساقاة
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ لِيَهُودِ خَيْبَرَ يَوْمَ افْتَتَحَ خَيْبَرَ
" أُقِرُّكُمْ فِيهَا مَا أَقَرَّكُمُ اللَّهُ عَزَّ وَجَلَّ عَلَى أَنَّ الثَّمَرَ بَيْنَنَا وَبَيْنَكُمْ " . قَالَ فَكَانَ رَسُولُ اللَّهِ صلى الله عليه وسلم يَبْعَثُ عَبْدَ اللَّهِ بْنَ رَوَاحَةَ فَيَخْرُصُ بَيْنَهُ وَبَيْنَهُمْ ثُمَّ يَقُولُ إِنْ شِئْتُمْ فَلَكُمْ وَإِنْ شِئْتُمْ فَلِيَ . فَكَانُوا يَأْخُذُونَهُ .
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, said to the jews of Khaybar on the day of the conquest of
Khaybar, "I confirm you in it as long as Allah, the Mighty, the
Majestic, establishes you in it, provided that the fruits are divided
between us and you." Said continued, "The Messenger of Allah, may
Allah bless him and grant him peace, used to send Abdullah ibn Rawaha,
to assess the division of the fruit crop between him and them, and he
would say, 'If you wish, you can buy it back, and if you wish, it is
mine.' They would take it."
USC-MSA web (English) reference : Book 33, Hadith 1
Hadith 513910
Chapter 33: Sharecropping - كتاب المساقاة
Malik related to me from Ibn Shihab from Sulayman ibn Yasar that
the Messenger of Allah, may Allah bless him and grant him peace, used
to send Abdullah ibn Rawaha to Khaybar, to assess the division of the
fruit crop between him and the jews of Khaybar.
The jews
collected for Abdullah pieces of their women's jewellery and said to
him, "This is yours. Go light on us and don't be exact in the
division!"
Abdullah ibn Rawaha said, "O tribe of jews! By
Allah! You are among the most hateful to me of Allah's creation, but
it does not prompt me to deal unjustly with you. What you have offered
as a bribe is forbidden. We will not touch it." They said, "This is
what supports the heavens and the earth."
Malik said, "If a
share-cropper waters the palms and between them there is some
uncultivated land, whatever he cultivates in the uncultivated land is
his."
Malik said, "If the owner of the land makes a condition
that he will cultivate the uncultivated land for himself, that is not
good because the sharecropper does the watering for the owner of the
land and so he increases the owner of the land in property (without
any return for himself)."
Malik said, "If the owner
stipulates that the fruit crop is to be shared between them, there is
no harm in that if all the maintenance of the property - seeding,
watering and case, etc. - are the concern of the sharecropper.
If the share-cropper stipulates that the seeds are the
responsibility of the owner of the property - that is not permitted
because he has stipulated an outlay against the owner of the property.
Share-cropping is conducted on the basis that all the care and expense
is outlayed by the share-cropper, and the owner of the property is not
obliged anything. This is the accepted method of share-cropping."
Malik spoke about a spring which was shared between two men, and
then the water dried up and one of them wanted to work on the spring
and the other said, "I don't have the means to work on it." He said,
"Tell the one who wants to work on the spring, 'Work and expend. All
the water will be yours. You will have its water until your companion
brings you half of what you have spent. If he brings you half of what
you have spent, he can take his share of the water.' The first one is
given all the water, because he has spent on it, and if he does not
reach anything by his work, the other has not incurred any expense."
Malik said, "It is not good for a share-cropper not to expend
anything but his labour and to be hired for a share of the fruit while
all the expense and work is incurred by the owner of the garden,
because the share-cropper does not know what the exact wage is going
to be for his labour, whether it will be little or great."
Malik said, "No-one who lends a qirad or grants a share-cropping
contract, should exempt some of the wealth, or some of the trees from
his agent, because, by that, the agent becomes his hired man. He says,
'I will grant you a share-crop provided that you work for me on such-
and-such a palm - water it and tend it. I will give you a qirad for
such-and-such money provided that you work for me with ten dinars.
They are not part of the qirad I have given you.' That must not be
done and it is not good. This is what is done in our community."
Malik said, "The sunna about what is permitted to an owner of a
garden in share-cropping is that he can stipulate to the share-cropper
the maintenance of walls, cleaning the spring, sweeping the irrigation
canals, pollinating the palms, pruning branches, harvesting the fruit
and such things, provided that the share-cropper has a share of the
fruit fixed by mutual agreement. However, the owner cannot stipulate
the beginning of new work which the agent will start digging a well,
raising the source of a well, instigating new planting, or building a
cistern whose cost is great. That is as if the owner of the garden
said to a certain man, 'Build me a house here or dig me a well or make
a spring flow for me or do some work for me for half the fruit of this
garden of mine,' before the fruit of the garden is sound and it is
halal to sell it. This is the sale of fruit before its good condition
is clear. The Messenger of Allah, may Allah bless him and grant him
peace, forbade fruit to be sold before its good condition became
clear."
Malik said, "If the fruits are good and their good
condition is clear and selling them is halal and then the owner asks a
man to do one of those jobs for him, specifying the job, for half the
fruit of his garden, for example, there is no harm in that. He has
hired the man for something recognised and known. The man has seen it
and is satisfied with it.
"As for share-cropping, if the
garden has no fruit or little or bad fruit, he has only that. The
labourer is only hired for a set amount, and hire is only permitted on
these terms. Hire is a type of sale. One man buys another man's work
from him. It is not good if uncertainty enters into it because the
Messenger of Allah, may Allah bless him and grant him peace, forbade
uncertain transactions."
Malik said, "The sunna in share-
cropping with us is that it can be practised with any kind of fruit
tree, palm, vine, olive tree, pomegranate, peach, and soon. It is
permitted, and there is no harm in it provided that the owner of the
property has a share of the fruit:
a half or a third or a quarter or
whatever."
Malik said, "Share-cropping is also permitted in
any crop which emerges from the earth if it is a crop which is picked,
and its owner cannot water, work on it and tend it.
"Share-
cropping becomes reprehensible in anything in which share-cropping is
normally permitted if the fruit is sound and the good condition is
clear and it is halal to sell it. He must share-crop in it the next
year. If a man waters fruit whose good condition is clear and it is
halal to sell it, and he picks it for the owner, for a share of the
crop, it is not sharecropping. It is similar to him being paid in
dirhams and dinars. Share-cropping is what is between pruning the
palms and when the fruit becomes sound and its sale is halal."
Malik said, "If some one makes a share-cropping contract for fruit
trees before the condition becomes clear and its sale is halal, it is
share-cropping and is permitted . "
Malik said, "Uncultivated
land must not be involved in a share-cropping contract. That is
because it is halal for the owner to rent it for dinars and dirhams or
the equivalent for an accepted price."
Malik said, "As for a
man who gives his uncultivated earth for a third or a fourth of what
comes out of it, that is an uncertain transaction because crops may be
scant one time and plentiful another time. It may perish completely
and the owner of the land will have abandoned a set rent which would
have been good for him to rent the land for. He takes an uncertain
situation, and does not know whether or not it will be satisfactory.
This is disapproved. It is like a man having someone travel for him
for a set amount, and then saying, 'Shall I give you a tenth of the
profit of the journey as your wage?' This is not halal and must not be
done."
Malik summed up,"A man must not hire out himself or
his land or his ship unless for a set amount."
Malik said, "A
distinction is made between sharecropping in palms and in cultivated
land because the owner of the palms cannot sell the fruit until its
good condition is clear. The owner of the land can rent it when it is
uncultivated with nothing on it."
Malik said, "What is done
in our community about palms is that they can also be share-cropped
for three and four years, and less or more than that."
Malik
said, "That is what I have heard. Any fruit trees like that are in the
position of palms. Contracts for several years are permissible for the
sharecropper as they are permissible in the palms."
Malik
said about the owner, "He does not take anything additional from the
share-cropper in the way of gold or silver or crops which increases
him. That is not good. The share-cropper also must not take from the
owner of the garden anything additional which will increase him of
gold, silver, crops or anything. Increase beyond what is stipulated in
the contract is not good. It is also not good for the lender of a
qirad to be in this position. If such an increase does enter share-
cropping or quirad, it becomes by it hire. It is not good when hire
enters it. Hire must never occur in a situation which has uncertainty
in it."
Malik spoke about a man who gave land to another man
in a share-cropping contract in which there were palms, vines, or the
like of that of fruit trees and there was also uncultivated land in
it. He said, "If the uncultivated land is secondary to the fruit
trees, either in importance or in size of land, there is no harm in
share-cropping. That is if the palms take up two-thirds of the land or
more, and the uncultivated land is a third or less. This is because
when the land that the fruit trees take up is secondary to the
uncultivated land and the cultivated land in which the palms, vines or
the like is a third or less, and the uncultivated land is two-thirds
or more, it is permitted to rent the land and share-cropping in it is
haram."
"One of the practices of people is to give out
sharecropping contracts on property with fruit trees when there is
uncultivated land in it, and to rent land while there are fruit trees
on it, just as a Qur'an or sword which has some embellishment on it of
silver is sold for silver, or a necklace or ring which have stones and
gold in them are sold for dinars. These sales continue to be
permitted. People buy and sell by them. Nothing described or
instituted has come on that which if exceeded, makes it haram, and if
fallen below makes it halal. What is done in our community about that
is what people practise and permit among themselves. That is, if the
gold or silver is secondary to what it is incorporated in, it is
permitted to sell it. That is, if the value of the blade, the Qur'an,
or the stones is two-thirds or more, and the value of the decoration
is one-third or less."
Yahya said that Malik said, "The best of what has been heard
about a sharecropper stipulating on the owner of the property the
inclusion of some slave workers, is that there is no harm in that if
they are workers that come with the property. They are like the
property. There is no profit in them for the share-cropper except to
lighten some of his burden. If they did not come with the property,
his toil would be harder. It is like share-cropping land with a spring
or land with a watering trough. You will not find anyone who receives
the same share for share-cropping two lands which are equal in
property and yield, when one property has a constant plentiful spring
and the other has a watering trough, because of the lightness of
working land with a spring, and the hardship of working land with a
watering trough."
Malik added, "That is what is done in our
community."
Malik said, "A share-cropper cannot employ
workers from the property in other work, and he cannot make that a
stipulation with the one who gives him the share-cropping contract.
Nor is it permitted to one who share-crops to stipulate on the owner
of the property inclusion of slaves for use in the garden who are not
in it when he makes the share-cropping contract."
"Nor must
the owner of the property stipulate on the one who uses his property
for share-cropping that he take any of the slaves of the property and
remove him from the property. The share-cropping of property is based
on the state which it is currently in."
"If the owner of the
property wants to remove one of the slaves of the property, he removes
him before the share-cropping, or if he wants to put someone into the
property, he does it before the share-cropping. Then he grants the
share-cropping contract after that if he wishes. If any of the slaves
die or go off or become ill, the owner of the property must replace
them."
Yahya related to me from Malik from Rabia ibn Abd ar-Rahman from
Handhala ibn Qays az-Zuraqi from Rafi ibn Khadij that the Messenger of
Allah, may Allah bless him and grant him peace, forbade renting out
fields.
Handhala said, "I asked Rafi ibn Khadij, about paying
in gold and silver, and he said, 'There is no harm in it.' "
Malik related to me that Ibn Shihab said, "I asked Said ibn al-
Musayyab about renting land for gold or silver, and he said, 'There is
no harm in it.' "
Malik related to me from Ibn Shihab that he asked Salim ibn
'Abdullah ibn Umar about renting out fields. He said, "There is no
harm in it for gold or silver." Ibn Shihab said, "I said to him, 'What
do you think of the hadith which is mentioned from Rafi ibn Khadij?'"
He said, ''Rafi has exaggerated. If I had a field, I would rent it
out."
Malik related to me that he had heard that Abd ar-Rahman ibn Awf
rented land, and he continued to have it in his possession until he
died. His son said, "I thought that it was ours because of the length
of time which it had remained in his hands, until he mentioned it to
us at his death. He ordered us to pay some rent which he owed in gold
or silver."
Malik related to me from Hisham ibn Urwa that his father used to
rent out his land for gold and silver.
Malik was asked about
a man who rented his field for 100 sa of dates or part of its produce
of wheat or from other than its produce. He disapproved of that.
Yahya related to me from Malik from Ibn Shihab from Said ibn al- Musayyab and from Abu Salama ibn Abd ar-Rahman ibn Awf that the Messenger of Allah, may Allah bless him and grant him peace, decreed for partners the right of preemption in property which had not been divided up. When boundaries had been fixed between them, then there was no right of pre-emption.
Malik said that he heard that Said ibn al-Musayyab, when asked
about pre-emption and whether there was a sunna in it, said, "Yes.
Pre-emption is in houses and land, and it is only between partners."
Malik related to me that he heard the like of that from Sulayman
ibn Yasar.
Malik spoke about a man who bought out one of the
partners in a shared property, by paying the man with an animal, a
slave, a slave-girl, or the equivalent of that in goods. Then another
partner decided to exercise his right of pre-emption after that, and
he found that the slave or slave-girl had died, and no one knew what
her value had been. The buyer claimed, "The value of the slave or
slave-girl was 100 dinars." The partner with the right of pre-emption
claimed, "The value was 50 dinars."
Malik said, "The buyer
takes an oath that the value of what he payed was 100 dinars. Then if
the one with the right of pre-emption wishes, he can compensate him,
or else he can leave it, unless he can bring a clear proof that the
slave or slave-girl's value is less than what the buyer said. If
someone gives away his portion of a shared house or land and the
recipient repays him for it by cash or goods, the partners can take it
by pre-emption if they wish and pay off the recipient the value of
what he gave in dinars or dirhams. If someone makes a gift of his
portion of a shared house or land, and does not take any remuneration
and does not seek to, and a partner wants to take it for its value, he
cannot do so as long as the original partner has not been given
recompense for it. If there is any recompense, the one with the right
of pre-emption can have it for the price of the recompense."
Malik spoke about a man who bought into a piece of shared land for a
price on credit, and one of the partners wanted to possess it by right
of pre-emption . Malik said, "If it seems likely that the partner can
meet the terms, he has right of pre-emption for the same credit terms.
If it is feared that he will not be able to meet the terms, but he can
bring a wealthy and reliable guarantor of equal standing to the one
who bought into the land, he can also take possession."
Malik
said, "A person's absence does not sever his right of pre-emption.
Even if he is a way for a long time, there is no time limit after
which the right of preemption is cut off."
Malik said that if
a man left land to a number of his children, then one of them who had
a child died and the child of the deceased sold his right in that
land, the brother of the seller was more entitled to pre-empt him than
his paternal uncles, the partners of his father.
Malik said,
"This is what is done in our community."
Malik said, "Pre-
emption is shared between partners according to their existing shares.
Each of them takes according to his portion. If it is small, he has
little. If it is great, it is according to that. That is if they are
tenacious and contend with each other about it."
Malik said,
"As for a man who buys out the share of one of his partners, and one
of the other partners says, 'I will take a portion according to my
share,' and the first partner says, 'If you wish to take all the
preemption, I will give it up to you. If you wish to leave it, then
leave it.' If the first partner gives him the choice and hands it over
to him, the second partner can only take all the pre-emption or give
it back. If he takes it, he is entitled to it. If not, he has
nothing."
Malik spoke about a man who bought land, and
developed it by planting trees or digging a well etc., and then
someone came, and seeing that he had a right in the land, wanted to
take possession of it by pre-emption. Malik said "He has no right of
preemption unless he compensates the other for his expenditure. If he
gives him the price of what he has developed, he is entitled to pre-
emption . If not, he has no right in it."
Malik said that
someone who sold off his portion of a shared house or land and then,
on learning that some one with a right of pre-emption was to take
possession by that right, asked the buyer to revoke the sale, and he
did so, did not have the right to do that. The pre-emptor has more
right to the property for the price for which he sold it.
In
the case of some one who bought along with a section of a shared house
or land, an animal and goods (that were not shared), so that when any
one demanded his right of pre-emption in the house or land he said,
"Take what I have bought altogether, for I bought it altogether,"
Malik said, "The pre-emptor need only take possession of the house or
land. Each thing the man bought is assessed according to its share of
the lump sum the man paid. Then the pre-emptor takes possession of his
right for a price which is appropriate on that basis. He does not take
any animals or goods unless he wants to do that."
Malik said,
"If someone sells a section of shared land, and one of those who have
the right of preemption surrenders it to the buyer and another refuses
to do other than take his pre-emption, the one who refuses to
surrender has to take all the preemption, and he cannot take according
to his right and leave what remains.
In the case where one of
a number of partners in one house sold his share when all his partners
were away except for one man, the one present was given the choice of
either taking the pre-emption or leaving it, and he said, 'I will take
my portion and leave the portions of my partners until they are
present. If they take it, that is that. If they leave it, I will take
all the pre-emption,' Malik said, 'He can only take it all or leave
it. If his partners come, they can take from him or leave it as they
wish. If this is offered to him and he does not accept, I think that
he has no pre-emption.' "
Yahya said that Malik related from Muhammad ibn Umara from Abu
Bakr ibn Hazm that Uthman ibn Affan said, "When boundaries are fixed
in land, there is no pre-emption in it. There is no pre-emption in a
well or in male palm trees. "
Malik said, "This is what is
done in our community."
Malik said, "There is no pre-emption
in a road, whether or not it is practical to divide it."
Malik said, "What is done in our community is that there is no pre-
emption in the courtyard of a house, whether or not it is practical to
divide it."
Malik spoke about a man who bought into a shared
property provided that he had the option of withdrawal and the
partners of the seller wanted to take what their partner was selling
by pre-emption before the buyer had exercised his option. Malik said,
"They cannot do that until the buyer has taken possession and the sale
is confirmed for him. When the sale is confirmed, they have the right
of pre-emption."
Malik spoke about a man who bought land and
it remained in his hands for some time. Then a man came and saw that
he had a share of the land by inheritance. Malik said, "If the man's
right of inheritance is established, he also has a right of
preemption. If the land has produced a crop, the crop belongs to the
buyer until the day when the right of the other is established,
because he has tended what was planted against being destroyed or
being carried away by a flood."
Malik continued, "If the time
has been long, or the witnesses are dead or the seller has died, or
the buyer has died, or they are both alive and the basis of the sale
and purchase has been forgotten because of the length of time, pre-
emption is discontinued. A man only takes his right by inheritance
which has been established for him. If his situation differs from
this, because the sale transaction is recent and he sees that the
seller has concealed the price in order to sever his right of pre-
emption, the value of the land is estimated, and he buys the land for
that price by his right of pre-emption. Then the buildings, plants, or
structures which are extra to the land are looked at, so he is in the
position of some one who bought the land for a known price, and then
after that built on it and planted. The owner of pre-emption takes
possession after that is included."
Malik said, "Pre-emption
is applied to the property of the deceased as it is applied to the
property of the living. If the family of the deceased fear to break up
the property of the deceased, then they share it and sell it, and they
have no pre-emption in it."
Malik said, "There is no pre-
emption among us in a slave or a slave-girl or a camel, a cow, sheep,
or any animal, nor in clothes or a well which does not have any
uncultivated land around it. Pre-emption is in what can be usefully
divided, and in land in which boundaries occur. As for what cannot be
usefully divided, there is no pre-emption in it."
Malik said,
"Some one who buys land in which people who are present have a right
of pre-emption, refers them to the Sultan and either they claim their
right or the Sultan surrenders it to him. If he were to leave them,
and not refer their situation to the Sultan and they knew about his
purchase, and then they left it until a long time had passed and then
came demanding their pre-emption, I do not think that they would have
it."
USC-MSA web (English) reference : Book 35, Hadith 4
Hadith 514010
Chapter 36: Judgements - كتاب الأقضية
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، عَنْ زَيْنَبَ بِنْتِ أَبِي سَلَمَةَ، عَنْ أُمِّ سَلَمَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" إِنَّمَا أَنَا بَشَرٌ وَإِنَّكُمْ تَخْتَصِمُونَ إِلَىَّ فَلَعَلَّ بَعْضَكُمْ أَنْ يَكُونَ أَلْحَنَ بِحُجَّتِهِ مِنْ بَعْضٍ فَأَقْضِيَ لَهُ عَلَى نَحْوِ مَا أَسْمَعُ مِنْهُ فَمَنْ قَضَيْتُ لَهُ بِشَىْءٍ مِنْ حَقِّ أَخِيهِ فَلاَ يَأْخُذَنَّ مِنْهُ شَيْئًا فَإِنَّمَا أَقْطَعُ لَهُ قِطْعَةً مِنَ النَّارِ " .
Yahya related to me from Malik from Hisham ibn Urwa from his
father from Zaynab bint Abi Salama from Umm Salama, the wife 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, "I am but a
man to whom you bring your disputes. Perhaps one of you is more
eloquent in his proof than the other, so I give judgement according to
what I have heard from him. Whatever I decide for him which is part of
the right of his brother, he must not take any of it, for I am
granting him a portion of the Fire."
Malik related to me from Yahya ibn Said from Said ibn al-Musayyab
that Umar ibn al-Khattab had a dispute brought to him between a muslim
and a jew. Umar saw that the right belonged to the jew and decided in
his favour. The jew said to him, "By Allah! You have judged
correctly.'' So Umar ibn al-Khattab struck him with a whip and said,
"How can you be sure." The jew said to him, "We find that there is no
judge who judges correctly but that there is an angel on his right
side and an angel on his left side who guide him and give him success
in the truth as long as he is with the truth. When he leaves the
truth, they rise and leave him."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm from his father from Abdullah ibn Amr ibn
Uthman from Abu Amra al-Ansari from Zayd ibn Khalid al-Juhani that the
Messenger of Allah, may Allah bless him and grant him peace, said,
"Shall I not tell you who is the best of witnesses? The one who brings
his testimony before he is asked for it, or tells his testimony before
he is asked for it."
Malik related to me that Rabia ibn Abi Abd ar-Rahman said, "An
Iraqi man came before Umar ibn al-Khattab and said, 'I have come to
you because of a matter which has no beginning and no end.' Umar said,
'What is it?' The man said, 'False testimony has appeared in our
land.' Umar said, 'Is that so?' He said, 'Yes.' Umar said, 'By Allah!
A man is not detained in Islam without just witnesses.' "
Yahya said from Malik that he heard from Sulayman ibn Yasar and
others that when they were asked whether the testimony of a man
flogged for a hadd crime was permitted, they said, "Yes, when
repentance (tawba) appears from him."
Malik related to me
that he heard Ibn Shihab being asked about that and he said the like
of what Sulayman ibn Yasar said.
Malik said, "That is what is
done in our community. It is by the word of Allah, the Blessed, the
Exalted, 'And those who accuse women who are muhsan, and then do not
bring four witnesses, flog them with eighty lashes, and do not accept
any testimony of theirs ever. They indeed are evil-doers, save those
who turn in tawba after that and make amends. Allah is Forgiving,
Merciful.' " (Sura 24 ayat 4).
USC-MSA web (English) reference : Book 36, Hadith 4
Hadith 514080
Chapter 36: Judgements - كتاب الأقضية
قَالَ يَحْيَى قَالَ مَالِكٌ عَنْ جَعْفَرِ بْنِ مُحَمَّدٍ، عَنْ أَبِيهِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَضَى بِالْيَمِينِ مَعَ الشَّاهِدِ .
Yahya said, "Malik said from Jafar ibn Muhammad from his father
that the Messenger of Allah, may Allah bless him and grant him peace,
pronounced judgement on the basis of an oath with one witness."
From Malik from Abu'z-Zinad that Umar ibn Abd al-Aziz wrote to
Abd al-Hamid ibn Abd ar-Rahman ibn Zayd ibn al-Khattab who was the
governor of Kufa, "Pronounce judgement on the basis of an oath with
one witness."
Malik related to me that he heard that Abu Salama ibn Abd ar-
Rahman and Sulayman ibn Yasar were both asked, "Does one pronounce
judgement on the basis of an oath with one witness?" They both said,
"Yes."
Malik said, "The precedent of the sunna in judging by
an oath with one witness is that if the plaintiff takes an oath with
his witness, he is confirmed in his right. If he draws back and
refuses to take an oath, the defendant is made to take an oath. If he
takes an oath, the claim against him is dropped. If he refuses to take
an oath, the claim is confirmed against him."
Malik said,
"This procedure pertains to property cases in particular. It does not
occur in any of the hadd-punishments, nor in marriage, divorce,
freeing slaves, theft or slander. If some one says, 'Freeing slaves
comes under property,' he has erred. It is not as he said. Had it been
as he said, a slave could take an oath with one witness, if he could
find one, that his master had freed him.
"However, when a
slave lays claim to a piece of property, he can take an oath with one
witness and demand his right as the freeman demands his right."
Malik said, "The sunna with us is that when a slave brings
somebody who witnesses that he has been set free, his master is made
to take an oath that he has not freed him, and the slave's claim is
dropped."
Malik said, "The sunna about divorce is also like
that with us. When a woman brings somebody who witnesses that her
husband has divorced her, the husband is made to take an oath that he
has not divorced her. If he takes the oath, the divorce does not
proceed . "
Malik said, "There is only one sunna of bringing
a witness in cases of divorce and freeing a slave. The right to make
an oath only belongs to the husband of the woman, and the master of
the slave. Freeing is a hadd matter, and the testimony of women is not
permitted in it because when a slave is freed, his inviolability is
affirmed and the hadd punishments are applied for and against him. If
he commits fornication and he is a muhsan, he is stoned. If he kills a
slave, he is killed for it. Inheritance is established for him,
between him and whoever inherits from him. If somebody disputes this,
arguing that if a man frees his slave and then a man comes to demand
from the master of the slave payment of a debt, and a man and two
women testify to his right, that establishes the right against the
master of the slave so that his freeing him is cancelled if he only
has the slave as property, inferring by this case that the testimony
of women is permitted in cases of setting free. The case is not as he
suggests (i.e. it is a case of property not freeing). It is like a man
who frees his slave, and then the claimant of a debt comes to the
master and takes an oath with one witness, demanding his right. By
that, the freeing of the slave would be cancelled. Or else a man comes
who has frequent dealings and transactions with the master of the
slave. He claims that he is owed money by the master of the slave.
Someone says to the master of the slave, 'Take an oath that you don't
owe what he claims'. If he draws back and refuses to take an oath, the
one making the claim takes an oath and his right against the master of
the slave is confirmed. That would cancel the freeing of the slave if
it is confirmed that property is owed by the master."
Malik
said, "It is the same case with a man who marries a slave-girl and
then the master of the slave-girl comes to the man who has married her
and claims, 'You and so-and-so have bought my slave-girl from me for
such an amount of dinars. The husband of the slave-girl denies that.
The master of the slave-girl brings a man and two women and they
testify to what he has said. The sale is confirmed and his claim is
considered true. So the slave-girl is haram for her husband and they
have to separate, even though the testimony of women is not accepted
in divorce."
Malik said, "It is also the same case with a man
who accuses a free man, so the hadd falls on him. A man and two women
come and testify that the one accused is a slave. That would remove
the hadd from the accused after it had befallen him, even though the
testimony of women is not accepted in accusations involving hadd
punishments."
Malik said, "Another similar case in which
judgement appears to go against the precedent of the sunna is that two
women testify that a child is born alive and so it is necessary for
him to inherit if a situation arises where he is entitled to inherit,
and the child's property goes to those who inherit from him, if he
dies, and it is not necessary that the two women witnesses should be
accompanied by a man or an oath even though it may involve vast
properties of gold, silver, live-stock, gardens and slaves and other
properties. However, had two women testified to one dirham or more or
less than that in a property case, their testimony would not affect
anything and would not be permitted unless there was a witness or an
oath with them."
Malik said, "There are people who say that
an oath is not acceptable with only one witness and they argue by the
word of Allah the Blessed, the Exalted, and His word is the Truth,
'And call in to witness two witnesses, men; or if the two be not men,
then one man and two women, such witnesses as you approve of.' (Sura 2
ayat 282). Such people argue that if he does not bring one man and two
women, he has no claim and he is not allowed to take an oath with one
witness."
Malik said, "Part of the proof against those who
argue this, is to reply to them, 'Do you think that if a man claimed
property from a man, the one claimed from would not swear that the
claim was false?' If he swears, the claim against him is dropped. If
he refuses to take an oath, the claimant is made to take an oath that
his claim is true, and his right against his companion is established.
There is no dispute about this with any of the people nor in any
country. By what does he take this? In what place in the Book of Allah
does he find it? So if he confirms this, let him confirm the oath with
one witness, even if it is not in the Book of Allah, the Mighty, the
Majestic! It is enough that this is the precedent of the sunna.
However, man wants to recognise the proper course of action and the
location of the proof. In this there is a clarification for what is
obscure about that, if Allah ta'ala wills."
Yahya said, "Malik said about Jamil ibn Abd ar-Rahman al-Muadhdin
that he was present with Umar ibn Abd al-Aziz when he was judging
between people. If a man came to him with a claim against a man, he
examined whether or not there were frequent transactions and dealings
between them. If there were, the defendant could make an oath. If
there was nothing of that nature he did not accept an oath from him."
Malik summed up, "What is done in our community is that if
some one makes a claim against a man, it is examined. If there are
frequent transactions and dealings between them, the defendant is made
to take an oath. If he takes an oath, the claim against him is
dropped. If the defendant refuses to take an oath, and returns the
oath to the claimant, the one claiming his right takes an oath and
takes his due."
Yahya said, "Malik said from Hisham ibn Urwa that Abdullah ibn
az-Zubayr gave judgment based on the testimony of children concerning
the injuries between them."
Malik said, "The generally agreed
on way of doing things in our community is that the testimony of
children is permitted concerning injuries between them. It is not
accepted about anything else. It is only permitted between them if
they testify before they leave the scene of the incident and have been
deceived or instructed. If they leave the scene, they have no
testimony unless they call just witnesses to witness their testimony
before they leave."
Yahya said, Malik related to us from Hisham ibn Hisham ibn Utba
ibn Abi Waqqas from Abdullah ibn Nistas from Jabir ibn Abdullah al-
Ansari that the Messenger of Allah, may Allah bless him and grant him
peace, said, 'If someone swears a false oath near this mimbar of mine,
he will take his seat in the fire.' "
Malik related to me from al-Ala ibn Abd ar-Rahman from Mabad ibn
Kab as-Salami from his brother Abdullah ibn Kab ibn Malik al-Ansari
from Abu Umama that the Messenger of Allah, may Allah bless him and
grant him peace, said, "Whoever cuts off the right of a muslim man by
his oath, Allah forbids him the Garden and obliges the Fire for him."
They said, "Even if it is something insignificant, Messenger of
Allah?" He said, "Even if it is a tooth-stick, even if it is a tooth-
stick," repeating it three times.
Yahya said that Malik had said from Da'ud ibn al-Husayn that he
heard Abu Ghatafan ibn Tarif al-Muriyi say, "Zayd ibn Thabit al-Ansari
and Ibn Muti had a dispute about a house which they shared. They went
to Marwan ibn al-Hakam who was the Amir of Madina. Marwan decided that
Zayd ibn Thabit must take an oath on the mimbar. Zayd ibn Thabit said,
'I swear to it where I am.' Marwan said, 'No, by Allah! only in the
place of sorting out claims (i.e. the mimbar).' Zayd ibn Thabit began
to take an oath that his right was true, and he refused to take an
oath near the mimbar. Marwan ibn al-Hakam began to wonder at that."
Malik said, "I do not think that anyone should be made to
take an oath near the mimbar for less than a fourth of a dinar, and
that is three dirhams."
USC-MSA web (English) reference : Book 36, Hadith 12
Hadith 514160
Chapter 36: Judgements - كتاب الأقضية
قَالَ يَحْيَى حَدَّثَنَا مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" لاَ يَغْلَقُ الرَّهْنُ " .
Yahya said, "Malik related to us from Ibn Shihab from Sa'id ibn
al-Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, said, 'The pledge given as security is not forfeited.' "
Malik said, "The explanation of that according to what we
think - and Allah knows best - is that a man gives a pledge to
somebody in security for something. The pledge is superior to that for
which he pawned it. The pledger says to the pawn-broker, 'I will bring
you your due, after such-and-such a time. If not, the pledge is yours
for what it was pawned for.' "
Malik said, "This transaction
is not good and it is not halal. This is what was forbidden. If the
owner brings what he pledged it for after the period, it is his. I
think that the time condition is void."
Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan
gave a judgment that the rapist had to pay the raped woman her bride-
price.
Yahya said that he heard Malik say, "What is done in
our community about the man who rapes a woman, virgin or non-virgin,
if she is free, is that he must pay the bride-price of the like of
her. If she is a slave, he must pay what he has diminished of her
worth. The hadd-punishment in such cases is applied to the rapist, and
there is no punishment applied to the raped woman. If the rapist is a
slave, that is against his master unless he wishes to surrender him."
Yahya related to me from Malik from Zayd ibn Aslam that the
Messenger of Allah, may Allah bless him and grant him peace, said, "If
someone changes his deen - strike his neck!"
The meaning of
the statement of the Prophet, may Allah bless him and grant him peace,
in our opinion and Allah knows best, is that "if someone changes his
deen, strike his neck!" refers to those who leave Islam for other than
it - like the heretics and their like, about whom it is known. They
are killed without being called to tawba because their tawba is not
recognised. They were hiding their kufr and publishing their Islam, so
I do not think that one calls such people to tawba, and one does not
accept their word. As for the one who goes out of Islam to something
else and divulges it, one calls him to tawba. If he does not turn in
tawba, he is killed. If there are people in that situation, I think
that one should call them to Islam and call them to tawba. If they
turn in tawba, that is accepted from them. If they do not turn in
tawba, they are killed. That does not refer as we see it, and Allah
knows best, to those who come out of Judaism to Christianity or from
Christianity to Judaism, nor to someone who changes his deen from the
various forms of deen except for Islam. Whoever comes out of Islam to
other than it and divulges that, that is the one who is referred to,
and Allah knows best!
Malik related to me from Abd ar-Rahman ibn Muhammad ibn Abdullah
ibn Abd al-Qari that his father said, "A man came to Umar ibn al-
Khattab from Abu Musa al-Ashari. Umar asked after various people, and
he informed him. Then Umar inquired, 'Do you have any recent news?' He
said, 'Yes. A man has become a kafir after his Islam.' Umar asked,
'What have you done with him?' He said, 'We let him approach and
struck off his head.' Umar said, 'Didn't you imprison him for three
days and feed him a loaf of bread every day and call on him to tawba
that he might turn in tawba and return to the command of Allah?' Then
Umar said, 'O Allah! I was not present and I did not order it and I am
not pleased since it has come to me!' "
USC-MSA web (English) reference : Book 36, Hadith 16
Hadith 514200
Chapter 36: Judgements - كتاب الأقضية
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنْ سُهَيْلِ بْنِ أَبِي صَالِحٍ السَّمَّانِ، عَنْ أَبِيهِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ سَعْدَ بْنَ عُبَادَةَ، قَالَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم أَرَأَيْتَ إِنْ وَجَدْتُ مَعَ امْرَأَتِي رَجُلاً أَأُمْهِلُهُ حَتَّى آتِيَ بِأَرْبَعَةِ شُهَدَاءَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" نَعَمْ " .
Yahya related to me from Malik from Suhayl ibn Abi Salih as-
Samman from his father from Abu Hurayra that Sad ibn Ubada said to the
Messenger of Allah, may Allah bless him and grant him peace, "What do
you think if I find a man with my wife? Shall I grant him a respite
until I bring four witnesses?" The Messenger of Allah, may Allah bless
him and grant him peace, replied, "Yes."
Malik related to me from Yahya ibn Said from Said ibn al-Musayyab
that a Syrian man called Ibn Khaybari found a man with his wife and
killed him, or killed them both. Muawiya ibn Abi Sufyan found it
difficult to make a decision and he wrote to Abu Musa al-Ashari to ask
Ali ibn Abi Talib for him about that. So Abu Musa asked Ali ibn Abi
Talib and AIi said to him, "Is this thing in my land? I adjure you,
you must tell me." Abu Musa explained to him how Muawiya ibn Abi
Sufyan had written him to ask Ali about it. Ali said, "I am Abu Hasan.
If he does not bring four witnesses, then let him be completely handed
over," (to the relatives of the murdered man).
Yahya said that Malik related from Ibn Shihab that Sunayn Abi
Jamila, a man from the Banu Sulaym, found an abandoned child in the
time of Umar ibn al-Khattab. Sunayn took him to Umar ibn al-Khattab.
He asked, "What has induced you to take this person?" He answered, "I
found him lost, so I took him.'' Umar's advisor said to him,' 'Amir
al-Muminin! He is a man who does good." Umar inquired of him, "Is it
so?" He replied, "Yes." Umar ibn al-Khattab said, "Go, he is free, and
you have his wala' inheritance, and we will provide for him."
Yahya said that he heard Malik say, "What is done in our community
about an abandoned child is that he is free, and his wala' inheritance
belongs to the muslims, and they inherit from him and pay his blood
money."
Yahya said from Malik from Ibn Shihab from Urwa ibn az-Zubayr
that A'isha, the wife of the Prophet, may Allah bless him and grant
him peace, said, ''Utba ibn Abi Waqqas disclosed to his brother, Sad
ibn Abi Waqqas, that he was the father of the son of the slave-girl of
Zama, and made him promise to look after him (after his death). In the
year of the conquest, Sad took him and said, 'He is the son of my
brother. He covenanted with me about him.' Abd ibn Zama stood up and
said, 'He is my brother and the son of my father's slave-girl. He was
born on his bed.' They went to the Messenger of Allah, may Allah bless
him and grant him peace. Sad said, 'Messenger of Allah! He is the son
of my brother, he made a covenant with me about him.' Abd ibn Zama
said, 'He is my brother and the son of my father's slave-girl and was
born on my father's bed.' The Messenger of Allah, may Allah bless him
and grant him peace, said, 'He is yours, Abd ibn Zama.' Then the
Messenger of Allah, may Allah bless him and grant him peace, said, 'A
child belongs to the household (where he was born) and the adulterer
is stoned.' Then he told Sawda bint Zama, 'Veil yourself from him,'
since he saw in him a resemblance to Utba ibn Abi Waqqas." A'isha
added, "He did not see her until he met Allah, the Mighty, the
Majestic!"
Malik related to me from Yazid ibn Abdullah ibn al-Hadi from
Muhammad ibn Ibrahim ibn al-Harith at-Taymi from Sulayman ibn Yasar
from Abdullah ibn Abi Umayya that a woman's husband died, and she did
the idda of four months and ten days. Then she married when she was
free to marry. She stayed with her husband for four and a half months,
then gave birth to a fully developed child. Her husband went to Umar
ibn al-Khattab and mentioned that to him, so Umar called some of the
old women of the Jahiliyya and asked them about that. One of the women
said, "I will tell you what happened with this woman. When her husband
died, she was pregnant by him, but then the blood flowed from her
because of his death and the child became dry in her womb. When her
new husband had intercourse with her and the water reached the child,
the child moved in the womb and grew." Umar ibn al-Khattab believed
her and separated them (until she had completed her idda). Umar said,
"Only good has reached me about you two," and he connected the child
to the first husband.
Malik related to me from Yahya ibn Said from Sulayman ibn Yasar
that Umar ibn al-Khattab used to attach the children of the Jahiliyya
to whoever claimed them in Islam. Two men came and each of them
claimed a woman's child. Umar ibn al-Khattab summoned a person who
scrutinized features and he looked at them. The scrutinizer said,
"They both share in him." Umar ibn al-Khattab hit him with a whip.
Then he summoned the woman, and said, "Tell me your tale." She said,
"It was this one (indicating one of the two men) who used to come to
me while I was with my people's camels. He did not leave me until he
thought and I thought that I was pregnant. Then he left me, and blood
flowed from me, and this other one took his place. I do not know from
which of them the child is." The scrutinizer said, "Allah is greater."
Umar said to the child, "Go to whichever of them you wish."
Malik related to me that he had heard that Umar ibn al-Khattab or
Uthman ibn Affan gave a judgement about a slave woman who misled a man
about herself and said that she was free. He married her and she bore
children. It was decided that he should ransom his children with their
like of slaves.
Yahya said that he heard Malik say, "To
ransom them with their price is more equitable in this case, Allah
willing."
Yahya said that Malik related from Ibn Shihab from Salim ibn
Abdullah ibn Umar from his father that Umar ibn al-Khattab said,
"What's the matter with men who have intercourse with their slave-
girls and then dismiss them? No slave-girl comes to me whose master
confesses that he has had intercourse with her but that I connect her
child to him, whether or not he has practised coitus interruptus or
stopped having intercourse with her."
Malik related to me from Nafi that Safiyya bint Abi Ubayd
informed him that Umar ibn al-Khattab said, "What is the matter with
men who have intercourse with their slave-girls and then leave them to
go? No slave-girl comes to me whose master confesses that he has had
intercourse with her but that I connect her child to him, whether or
not he has practised coitus interruptus or left off from intercourse
with her."
Yahya said that he heard Malik say, "What is done
in our community about an umm walad who commits a crime is that her
master is liable for what she has done up to her value. He does not
have to surrender her, and he cannot be made to bear more than her
value for her crime."
USC-MSA web (English) reference : Book 36, Hadith 25
Hadith 514290
Chapter 36: Judgements - كتاب الأقضية
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَنْ أَحْيَا أَرْضًا مَيِّتَةً فَهِيَ لَهُ وَلَيْسَ لِعِرْقٍ ظَالِمٍ حَقٌّ " .
Yahya related from Malik from Hisham ibn Urwa from his father
that the Messenger of Allah, may Allah bless him and grant him peace,
said, "If anyone revives dead land, it belongs to him, and the unjust
root has no right."
Malik explained, "The unjust root is
whatever is taken, or planted without right."
Malik related to me from Ibn Shihab from Salim ibn Abdullah from
his father that Umar ibn al-Khattab said, "Whoever revives dead land,
it belongs to him."
Malik said, "That is what is done in our
community."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm that he heard that the Messenger of Allah,
may Allah bless him and grant him peace, said about the flood-channels
of Mahzur and Mudhaynib (in Madina), "Dam them systematically, so that
the water is diverted into each property in turn up to ankle level,
starting upstream."
USC-MSA web (English) reference : Book 36, Hadith 28
Hadith 514320
Chapter 36: Judgements - كتاب الأقضية
وَحَدَّثَنِي مَالِكٌ، عَنْ أَبِي الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" لاَ يُمْنَعُ فَضْلُ الْمَاءِ لِيُمْنَعَ بِهِ الْكَلأُ " .
Malik related to me from Abu'z-Zinad from al-Araj from Abu
Hurayra that the Messenger of Allah, may Allah bless him and grant him
peace, said, "Excess water is not withheld in order to prevent herbage
from growing."
USC-MSA web (English) reference : Book 36, Hadith 29
Hadith 514330
Chapter 36: Judgements - كتاب الأقضية
وَحَدَّثَنِي مَالِكٌ، عَنْ أَبِي الرِّجَالِ، مُحَمَّدِ بْنِ عَبْدِ الرَّحْمَنِ عَنْ أُمِّهِ، عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ أَنَّهَا أَخْبَرَتْهُ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" لاَ يُمْنَعُ نَقْعُ بِئْرٍ " .
Malik related to me from Abu'r-Rijal Muhammad ibn Abd ar-Rahman
from his mother Amra bint Abd ar-Rahman that she informed him that the
Messenger of Allah, may Allah bless him and grant him peace, said, "Do
not withhold the surplus water of a well from people."
USC-MSA web (English) reference : Book 36, Hadith 30
Hadith 514340
Chapter 36: Judgements - كتاب الأقضية
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ عَمْرِو بْنِ يَحْيَى الْمَازِنِيِّ، عَنْ أَبِيهِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" لاَ ضَرَرَ وَلاَ ضِرَارَ " .
Yahya related to me from Malik from Amr ibn Yahya al-Mazini from
his father that the Messenger of Allah, may Allah bless him and grant
him peace, said, "There is no injury nor return of injury."
USC-MSA web (English) reference : Book 36, Hadith 31
Hadith 514350
Chapter 36: Judgements - كتاب الأقضية
وَحَدَّثَنِي مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" لاَ يَمْنَعُ أَحَدُكُمْ جَارَهُ خَشَبَةً يَغْرِزُهَا فى جِدَارِهِ " . ثُمَّ يَقُولُ أَبُو هُرَيْرَةَ مَا لِي أَرَاكُمْ عَنْهَا مُعْرِضِينَ وَاللَّهِ لأَرْمِيَنَّ بِهَا بَيْنَ أَكْتَافِكُمْ .
Malik related to me from Ibn Shihab from al-Araj from Abu Hurayra
that the Messenger of Allah, may Allah bless him and grant him peace,
said, "No one should prevent his neighbour from fixing a wooden peg in
his wall." Then Abu Hurayra said, "Why do I see you turning away from
it? By Allah! I shall keep on at you about it."
Malik related to me from Amr ibn Yahya al-Mazini from his father
that ad-Dahhak ibn Khalifa watered his irrigation ditch from a large
source of water. He wanted to have it pass through the land of
Muhammad ibn Maslama, and Muhammad refused. Ad-Dahhak said to him,
"Why do you prevent me? It will benefit you. You can drink from it
first and last and it will not harm you." Muhammed refused so ad-
Dahhak spoke about it to Umar ibn al-Khattab, and Umar ibn al-Khattab
summoned Muhammad ibn Maslama and ordered him to clear the way.
Muhammad said, "No." Umar said, "Why do you prevent your brother from
what will benefit him and is also useful for you? You will take water
from it first and last and it will not harm you."
Muhammad
said, "No, by Allah!" Umar said, "By Allah, he will pass it through,
even if it is over your belly!" Umar ordered him to allow its passage
and ad-Dahhak did so.
Malik related to me from Amr ibn Yahya al-Mazini that his father
said, "There was a stream in my grand-father's garden belonging to Abd
ar-Rahman ibn Awf Abd ar-Rahman ibn Awf wanted to transfer it to a
corner of the garden nearer to his land, and the owner of the garden
prevented him. Abd ar-Rahman ibn Awf spoke to Umar ibn al-Khattab
about it, and he gave a judgement to Abd ar-Rahman ibn Awf that he
should transfer it."
Yahya related to me from Malik that Thawr ibn Zayd ad-Dili said,
"I heard that the Messenger of Allah, may Allah bless him and grant
him peace, said, 'A house or land that has been divided in the
Jahiliyya, it is according to the division of the Jahiliyya. A house
or land which has not been divided before the coming of Islam is
divided according to Islam.' "
Yahya related to me from Malik from Ibn Shihab from Haram ibn Sad
ibn Muhayyisa that a female camel of al-Bara ibn Azib entered the
garden of a man and it did some damage to it. The Messenger of Allah,
may Allah bless him and grant him peace, gave a judgement that the
people of the garden were responsible for guarding it in the day, and
the owner of the animals was liable for what the animals destroyed at
night.
Malik related to me from Hisham ibn Urwa from his father from
Yahya ibn Abd ar-Rahman ibn Hatib that some slaves of Hatib stole a
she-camel belonging to a man from the Muzayna tribe and they
slaughtered it. The case was brought before Umar ibn al-Khattab, and
Umar ordered Kathir ibn as-Salt to cut off their hands. Then Umar said
to Habib, "I think you must be starving them," and he added, "By
Allah! I will make you pay such a fine that it will be heavy for you."
He enquired of the man from the Muzayna tribe, "What was the price of
your camel?" The Muzayni said, "By Allah, I refused to sell her for
400 dirhams.'' Umar said, ''Give him 800 dirhams."
Yahya said
that he heard Malik say, "Doubling the price is not the behaviour of
our community. What people have settled on among us is that the man is
obliged to pay the value of the camel or animal on the day he took
it."
USC-MSA web (English) reference : Book 36, Hadith 38
Hadith 514410
Chapter 36: Judgements - كتاب الأقضية
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ حُمَيْدِ بْنِ عَبْدِ الرَّحْمَنِ بْنِ عَوْفٍ، وَعَنْ مُحَمَّدِ بْنِ النُّعْمَانِ بْنِ بَشِيرٍ، أَنَّهُمَا حَدَّثَاهُ عَنِ النُّعْمَانِ بْنِ بَشِيرٍ، أَنَّهُ قَالَ إِنَّ أَبَاهُ بَشِيرًا أَتَى بِهِ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَ إِنِّي نَحَلْتُ ابْنِي هَذَا غُلاَمًا كَانَ لِي . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَكُلَّ وَلَدِكَ نَحَلْتَهُ مِثْلَ هَذَا " . فَقَالَ لاَ . قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " فَارْتَجِعْهُ " .
Yahya related to us from Malik from Ibn Shihab from Humayd ibn
Abd ar-Rah man ibn Awf and from Muhammad ibn an-Numan ibn Bashir that
they related to him that an-Numan ibn Bashir said that his father
Bashir brought him to the Messenger of Allah, may Allah bless him and
grant him peace, and said, "I have given this son of mine one of my
slaves." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Have you given each of your children the same as this?"
He said, "No." The Messenger of Allah, may Allah bless him and grant
him peace, said, "Then take the slave back."
Malik related to me from Ibn Shihab from Urwa ibn az-Zubayr that
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, said, "Abu Bakr as-Siddiq gave me palm trees whose produce was
twenty awsuq from his property at al-Ghaba. When he was dying, he
said, 'By Allah, little daughter, there is no one I would prefer to be
wealthy after I die than you. There is no one it is more difficult for
me to see poor after I die than you. I gave you palm-trees whose
produce is twenty awsuq. Had you cut them and taken possession of
them, they would have been yours, but today they are the property of
the heirs, and they are your two brothers and your two sisters, so
divide it according to the Book of Allah.' A'isha continued, "I said,
'My father! By Allah, even if it had been more, I would have left it.
There is only Asma. Who is my other sister?" Abu Bakr replied, 'What
is in the womb of Kharija? (Kharija was the wife of Abu Bakr's
'brother' from the Ansar.) I think that it is going to be a girl.' "
Malik related to me from Ibn Shihab from Urwa ibn az-Zubayr from
Abd ar-Rahman ibn Abd al-Qari that Umar ibn al-Khattab said, "What is
wrong with men who give their sons gifts and then keep them and if the
son dies, they say, 'My property is in my possession and I did not
give it to anyone.' But if they themselves are dying, they say, 'It
belongs to my son, I gave it to him.' Whoever gives a gift, and does
not hand it over to the one to whom it was given, the gift is invalid,
and if he dies it belongs to the heirs in general."
Malik related to me from Da'ud ibn al-Husayn from Abu Ghatafan
ibn Tarif al-Muriyi that Umar ibn al-Khattab said, "If someone gives a
gift to strengthen ties with a relative or as sadaqa, he cannot have
it returned. If some one, however, gives a gift seeking by it favour
or reward, he has his gift and can reclaim it if he does not have
satisfaction from it."
Yahya said that he heard Malik say,
"The generally agreed-on way of doing things in our community is that
if the gift is returned to the one who gave it for recompense, and its
value has been either increased or decreased, the one to whom it has
been given gives the owner its value on the day he received it."
Malik related to me from Ibn Shihab from Abu Salama ibn Abd ar-
Rahman ibn Awf from Jabir ibn Abdullah al-Ansari that the Messenger of
Allah, may Allah bless him and grant him peace, said, "If someone is
given a life pension, for him and his posterity, it belongs to the
person to whom it has been given. It never reverts to the one who gave
it because he gave a gift and the rules of inheritance apply to it."
Malik related to me from Yahya ibn Said that Abd ar-Rahman ibn
al-Qasim ibn Muhammad heard Makhul ad-Dimashqi ask al-Qasim ibn
Muhammad about the life pension and what people said about it. Al-
Qasim ibn Muhammad said, "I have only come upon people who keep to the
conditions they make about their property and what they are given."
Yahya said that he heard Malik say, "What is done in our
community is that the life pension reverts to the one who makes it a
life pension unless he says, 'It belongs to you and your posterity.' "
Malik related to me from Nafi that Abdullah ibn Umar inherited
the house of Hafsa bint Umar. He said, "Hafsa gave lodging to the
daughter of Zayd ibn al-Khattab for as long as she lived. When the
daughter of Zayd died, Abdullah ibn Umar took possession of the
dwelling and considered that it was his."
Malik related to me from Rabia ibn Abi Abd ar-Rahman from Yazid,
the mawla of al-Munbaith that Zayd ibn Khalid al-Juhani said, "A man
came to the Messenger of Allah, may Allah bless him and grant him
peace, and asked him about finds. He said, 'Memorize the
characteristics of the object found, then publicise it for a year. If
the owner comes, give it to him. If not, then it is your business.' He
said, 'What about lost sheep, Messenger of Allah?' He said, 'They are
yours, your brother's or the wolf's.' He said, 'And the lost camel?'
He said, 'It's none of your concern. It has its water and its feet. It
will reach water and eat trees until its owner finds it.' "
Malik related to me from Ayyub ibn Musa from Muawiya ibn Abdullah
ibn Badr al-Juhani that his father informed him that he stopped with a
people on the way to Syria and he found a purse which had eighty
dinars in it. He mentioned that to Umar ibn al-Khattab. Umar said to
him, "Announce it at the doors of the mosques and mention it to
everyone who comes from Syria for a year. When a year passes, it is
your business."
Malik related to me from Nafi that a man found something and went
to Abdullah ibn Umar and said to him, "I have found something. What do
you think I should do about it?" Abdullah ibn Umar said to him,
"Publicise it!" He said, "I have done so." He said, "Do it again." He
said, "I have done so." Abdullah said, "I do not order you to use it.
If you wished, you could have left it."
Malik related to me from Yahya ibn Said from Sulayman ibn Yasar
that Thabit ibn ad-Dahhak al-Ansari told him that he had found a camel
at Harra, so he hobbled it and mentioned it to Umar ibn al-Khattab and
Umar ordered him to make it known three times. Thabit said to him,
"That would distract me from the running of my estate." Umar said to
him, "Then let it go where you found it."
Malik related to me from Yahya ibn Said from Said ibn al-Musayyab
that Umar ibn al-Khattab said while he was leaning his back against
the Kaba, "Whoever takes a stray is astray."
Malik related to me that he heard Ibn Shihab say, "The stray
camels in the time of Umar ibn al-Khattab were numerous and left
alone. No one touched them until the time of Uthman ibn Affan. He
ordered that they be publicised and then sold, and if the owner came
afterwards, he was given their price."
Malik related to me from Said ibn Amr Shurahbil ibn Said ibn Sad
ibn Ubada from his father that his father said, ''Sad ibn Ubada went
out with the Messenger of Allah, may Allah bless him and grant him
peace, in one of his raids and his mother was dying in Madina. Someone
said to her, 'Leave a testament.' She said, 'In what shall I leave a
testament? The property is Sad's property.' Then she died before Sad
returned. When Sad ibn Ubada returned, that was mentioned to him. Sad
said,
'Messenger of Allah! Will it help her if I give sadaqa
for her?' The Messenger of Allah, may Allah bless him and grant him
peace, said, 'Yes' Sad said, 'Such-and-such a garden is sadaqa for
her,' naming the garden."
USC-MSA web (English) reference : Book 36, Hadith 52
Hadith 514550
Chapter 36: Judgements - كتاب الأقضية
وَحَدَّثَنِي مَالِكٌ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، عَنْ عَائِشَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّ رَجُلاً قَالَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم إِنَّ أُمِّي افْتُلِتَتْ نَفْسُهَا وَأُرَاهَا لَوْ تَكَلَّمَتْ تَصَدَّقَتْ أَفَأَتَصَدَّقُ عَنْهَا فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" نَعَمْ " .
Malik related to me from Hisham ibn Urwa from his father from
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, that a man said to the Messenger of Allah, may Allah bless him
and grant him peace, "My mother died suddenly, and I think that had
she spoken, she would have given sadaqa. Shall I give sadaqa for her?"
The Messenger of Allah, may Allah bless him and grant him peace, said,
"Yes."
Malik related to me that he heard that a man of the Ansar from
the tribe of Banu al-Harith ibn al-Khazraj, gave sadaqa to his parents
and then they died. Their son inherited the property he had given them
and it was palm-trees. He asked the Messenger of Allah, may Allah
bless him and grant him peace, about it and he said, "You are rewarded
for your sadaqa, and take it as your inheritance."
USC-MSA web (English) reference : Book 36, Hadith 54
Hadith 514570
Chapter 37: Wills and Testaments - كتاب الوصية
حَدَّثَنِي مَالِكٌ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَا حَقُّ امْرِئٍ مُسْلِمٍ لَهُ شَىْءٌ يُوصَى فِيهِ يَبِيتُ لَيْلَتَيْنِ إِلاَّ وَوَصِيَّتُهُ عِنْدَهُ مَكْتُوبَةٌ " .
Malik related to me from Nafi from Abdullah ibn Umar that the
Messenger of Allah, may Allah bless him and grant him peace, said, "It
is the duty of a muslim man who has something to be given as a bequest
not to spend two nights without writing a will about it."
Malik said, "The generally agreed-on way of doing things in our
community is that when the testator writes something in health or
illness as a bequest, and it has freeing slaves or things other than
that in it, he can alter it in any way he chooses, until he is on his
deathbed. If he prefers to abandon a bequest or change it, he can do
so unless he has made a slave mudabbar (to be freed after his death).
If he has made him mudabbar, there is no way to change what he has
made mudabbar. He is allowed to change his testament because the
Messenger of Allah, may Allah bless him and grant him peace, said, "It
is the duty of a muslim man who has something to be given as a bequest
not to spend two nights without writing a will about it."
Malik explained, "Had the testator not been able to change his will
nor what was mentioned in it about freeing slaves, each testator might
withhold making bequests from his property, whether in freeing slaves
or other than it. A man gives a bequest in his health and in his
travelling." (i.e. he does not wait till his death bed ) .
Malik summed up, "The way of doing things in our community about which
there is no dispute is that he can change whatever he likes of that
except for the mudabbar."
Malik related to me from Abdullah ibn Abi Bakr ibn Hazm that Amr
ibn Sulaym az-Zuraqi informed his father that it had been said to Umar
ibn al-Khattab, "There is here an adolescent boy who has not yet
reached puberty. He is from the Ghassan tribe and his heir is in ash-
Sham. He has property. Here he only has the daughter of one of his
paternal uncles." Umar ibn al-Khattab instructed, "Let him leave her a
bequest." He willed her a property called the well of Jusham.
Malik added, "That property was sold for 30,000 dirhams, and the
daughter of the paternal uncle to whom he willed it was the mother of
Amr ibn Sulaym az-Zuraqi."
Malik related to me from Yahya ibn Said from Abu Bakr ibn Hazm
that a boy from Ghassan was dying in Madina while his heir was in
Syria. That was mentioned to Umar ibn al-Khattab. It was said to him,
"So-and-so is dying. Shall he make a bequest?" He said, "Let him make
a bequest."
Yahya ibn Said said that Abu Bakr had said, "He
was a boy of ten or twelve years." Yahya said, "He willed the well of
Jusham, and his people sold it for 30,000 dirhams."
Yahya
said that he heard Malik say, "The generally agreed-on way of doing
things in our community is that a simpleton, an idiot, or a lunatic
who recovers at times, can make wills if they have enough of their
wits about them to recognise what they will. Someone who has not
enough wits to recognise what he wills, and is overcome in his
intellect, cannot make a bequest."
USC-MSA web (English) reference : Book 37, Hadith 3
Hadith 514600
Chapter 37: Wills and Testaments - كتاب الوصية
حَدَّثَنِي مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنْ عَامِرِ بْنِ سَعْدِ بْنِ أَبِي وَقَّاصٍ، عَنْ أَبِيهِ، أَنَّهُ قَالَ جَاءَنِي رَسُولُ اللَّهِ صلى الله عليه وسلم يَعُودُنِي عَامَ حَجَّةِ الْوَدَاعِ مِنْ وَجَعٍ اشْتَدَّ بِي فَقُلْتُ يَا رَسُولَ اللَّهِ قَدْ بَلَغَ بِي مِنَ الْوَجَعِ مَا تَرَى وَأَنَا ذُو مَالٍ وَلاَ يَرِثُنِي إِلاَّ ابْنَةٌ لِي أَفَأَتَصَدَّقُ بِثُلُثَىْ مَالِي قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " لاَ " . فَقُلْتُ فَالشَّطْرُ قَالَ " لاَ " . ثُمَّ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " الثُّلُثُ وَالثُّلُثُ كَثِيرٌ إِنَّكَ أَنْ تَذَرَ وَرَثَتَكَ أَغْنِيَاءَ خَيْرٌ مِنْ أَنْ تَذَرَهُمْ عَالَةً يَتَكَفَّفُونَ النَّاسَ وَإِنَّكَ لَنْ تُنْفِقَ نَفَقَةً تَبْتَغِي بِهَا وَجْهَ اللَّهِ إِلاَّ أُجِرْتَ حَتَّى مَا تَجْعَلُ فِي فِي امْرَأَتِكَ " . قَالَ فَقُلْتُ يَا رَسُولَ اللَّهِ أَأُخَلَّفُ بَعْدَ أَصْحَابِي فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " إِنَّكَ لَنْ تُخَلَّفَ فَتَعْمَلَ عَمَلاً صَالِحًا إِلاَّ ازْدَدْتَ بِهِ دَرَجَةً وَرِفْعَةً وَلَعَلَّكَ أَنْ تُخَلَّفَ حَتَّى يَنْتَفِعَ بِكَ أَقْوَامٌ وَيُضَرَّ بِكَ آخَرُونَ اللَّهُمَّ أَمْضِ لأَصْحَابِي هِجْرَتَهُمْ وَلاَ تَرُدَّهُمْ عَلَى أَعْقَابِهِمْ لَكِنِ الْبَائِسُ سَعْدُ ابْنُ خَوْلَةَ يَرْثِي لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم أَنْ مَاتَ بِمَكَّةَ " .
Malik related to me from Ibn Shihab from Amir ibn Sad ibn Abi
Waqqas that his father said, "The Messenger of Allah, may Allah bless
him and grant him peace, came to me to treat me for a pain which
became hard to bear in the year of the farewell hajj. I said,
'Messenger of Allah, you can see how far the pain has reached me. I
have property and only my daughter inherits from me. Shall I give two
thirds of my property as sadaqa?' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'No.' I said, 'Half?' He said,
'No.' Then the Messenger of Allah, may Allah bless him and grant him
peace, said, 'A third, and a third is a lot. Leaving your heirs rich
is better than leaving them poor to beg from people. You never spend
anything on maintenance desiring the Face of Allah by it, but that you
are rewarded for it, even what you appoint for your wife.' Sad said,
'Messenger of Allah, will I be left here in Makka after my companions
have departed for Madina?' The Messenger of Allah, may Allah bless him
and grant him peace, said, 'If you are left behind, and do sound deeds
you will increase your degree and elevation by them. Perhaps you will
be left behind so that some people may benefit by you and others may
be harmed by you. O Allah! complete their hijra for my companions, and
do not turn them back on their heels. The unfortunate one is Said ibn
Khawla.' The Messenger of Allah, may Allah bless him and grant him
peace, was distressed on his account for he had died at Makka."
Yahya said that he heard Malik speak about a man who willed a
third of his property to a man and said as well, "My slave will serve
so-and-so (another man) for as long as he lives, then he is free,"
then that was looked into, and the slave was found to be a third of
the property of the deceased. Malik said, "The service of the slave is
evaluated. Then the two of them divide it between them. The one who
was willed a third takes his third, as a share, and the one who was
willed the service of the slave takes what was evaluated for him of
the slave's service. Each of them takes, from the service of the slave
or from his wage if he has a wage, according to his share. If the one
who was given the service of the slave for as long as he lived dies,
then the slave is freed."
Yahya said that he heard Malik
speak about someone who willed his third and said "So-and-so has such-
and-such, and so-and-so has such-and-such," naming some of his
property, and his heirs protested that it was more than a third."
Malik said, "The heirs then have an option between giving the
beneficiaries their full bequests and taking the rest of the property
of the deceased, or between dividing among the beneficiaries the third
of the property of the deceased and surrendering to them their third.
If they wish, their rights in it reach as far as they reach."
USC-MSA web (English) reference : Book 37, Hadith 4
Hadith 514610
Chapter 37: Wills and Testaments - كتاب الوصية
حَدَّثَنِي مَالِكٌ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، أَنَّ مُخَنَّثًا، كَانَ عِنْدَ أُمِّ سَلَمَةَ زَوْجِ النَّبِيِّ صلى الله عليه وسلم . فَقَالَ لِعَبْدِ اللَّهِ بْنِ أَبِي أُمَيَّةَ وَرَسُولُ اللَّهِ صلى الله عليه وسلم يَسْمَعُ يَا عَبْدَ اللَّهِ إِنْ فَتَحَ اللَّهُ عَلَيْكُمُ الطَّائِفَ غَدًا فَأَنَا أَدُلُّكَ عَلَى ابْنَةِ غَيْلاَنَ فَإِنَّهَا تُقْبِلُ بِأَرْبَعٍ وَتُدْبِرُ بِثَمَانٍ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" لاَ يَدْخُلَنَّ هَؤُلاَءِ عَلَيْكُمْ " .
Malik said from Hisham ibn Urwa from his father that an
effeminate man was with Umm Salama, the wife of the Prophet, may Allah
bless him and grant him peace. He said to Abdullah ibn Abi Umayya
while the Messenger of Allah, may Allah bless him and grant him peace,
was listening. "Abdullah! If Allah grants you victory over Ta'if
tomorrow, I will lead you to the daughter of Ghailan. She has four
folds on her front and eight folds on her back." The Messenger of
Allah, may Allah bless him and grant him peace, said, "This sort of
man should not enter freely with you." (It was customary to allow men
with no sexual inclination to enter freely where there were women).
Malik related to me that Yahya ibn Said said that he heard al-
Qasim ibn Muhammad say, "A woman of the Ansar was married to Umar ibn
al-Khattab. She bore Asim ibn Umar to him, and then he separated from
her. Umar came to Quba and found his son Asim playing in the courtyard
of the mosque. He took him by the arm and placed him before him on his
mount. The grandmother of the child saw him and argued with Umar about
the child so they went to Abu Bakr as-Siddiq. Umar said, 'My son.' The
woman said, 'My son.' Abu Bakr said, 'Do not interfere between a child
and its mother.' Umar did not repeat his words."
Yahya said
that he heard Malik say, "This is what I would have done in that
situation."
Malik related to me from Yahya ibn Said that Abu'd-Darda wrote to
Salman al-Farsi, "Come immediately to the holy land." Salman wrote
back to him, "Land does not make anyone holy. Man's deeds make him
holy. I have heard that you were put up as a doctor to treat and cure
people. If you are innocent, then may you have delight! If you are a
quack, then beware lest you kill a man and enter the Fire!" When
Abu'd-Darda judged between two men, and they turned from him to go, he
would look at them and say, "Come back to me, and tell me your story
again. A quack! By Allah!"
Yahya said that he heard Malik
say, "If someone makes use of a slave, without permission of its
master, in anything important to him, whose like has a fee, he is
liable for what befalls the slave if anything befalls him. If the
slave is safe and his master asks for his wage for what he has done,
that is the master's right. This is what is done in our community."
Yahya said that he heard Malik say about a slave who is part
free and part enslaved, "His property is suspended in his hand and he
cannot begin anything with it. He eats from it and clothes himself in
an approved fashion. If he dies, his property belongs to the one to
whom he is in slavery."
Yahya said that he heard Malik say,
"The way of doing things in our community is that a parent can take
his child to account for what he spends on him from the day the child
has property, cash or goods, if the parent wants that."
Malik related to me from Umar ibn Abd ar-Rahman ibn Dalaf al-
Muzani from his father that a man from the Juhayna tribe used to buy
camels before people set out for hajj and sell them at a higher price.
Then he travelled quickly and used to arrive in Makka before the
others who set out for hajj. He went bankrupt and his situation was
put before Umar ibn al-Khattab, who said, "O People! al-Usayfi, al-
Usayfi of the Juhayna, was satisfied with his deen and his trust
because it was said of him that he arrived before the others on hajj.
He used to incur debts which he was not careful to repay, so all of
his property has been eaten up by it. Whoever has a debt against him,
let him come to us tomorrow and we will divide his property between
his creditors. Beware of debts! Their beginning is a worry and their
end is destitution. "
Malik related to me from Ibn Shihab from Said ibn al-Musayyab
that Uthman ibn Affan said, "If someone gives something to his small
child who is not old enough to look after it himself, and in order
that his gift might be permitted he makes the gift public and has it
witnessed, the gift is permitted, even if the father keeps charge of
it."
Malik said, "What is done in our community is that if a
man gives his small child some gold or silver and then dies and he has
it in his own keeping, the child has none of it unless the father set
it aside in coin or placed it with a man to keep for the son. If he
does that, it is permitted for the son."
Malik related to me from Nafi from Abdullah ibn Umar that the Messenger of Allah, may Allah bless him and grant him peace,said, "If a man frees his share of a slave and has enough money to cover the full price of the slave justly evaluated for him, he must buy out his partners so that the slave is completely freed. If he doesn't have the money, he partially frees him.
USC-MSA web (English) reference : Book 38, Hadith 1
Hadith 514670
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
حَدَّثَنِي مَالِكٌ، عَنْ يَحْيَى بْنِ سَعِيدٍ، وَعَنْ غَيْرِ، وَاحِدٍ، عَنِ الْحَسَنِ بْنِ أَبِي الْحَسَنِ الْبَصْرِيِّ، وَعَنْ مُحَمَّدِ بْنِ سِيرِينَ، أَنَّ رَجُلاً، فِي زَمَانِ رَسُولِ اللَّهِ صلى الله عليه وسلم أَعْتَقَ عَبِيدًا لَهُ سِتَّةً عِنْدَ مَوْتِهِ فَأَسْهَمَ رَسُولُ اللَّهِ صلى الله عليه وسلم بَيْنَهُمْ فَأَعْتَقَ ثُلُثَ تِلْكَ الْعَبِيدِ . قَالَ مَالِكٌ وَبَلَغَنِي أَنَّهُ لَمْ يَكُنْ لِذَلِكَ الرَّجُلِ مَالٌ غَيْرُهُمْ .
Malik related to me from Yahya ibn Said and somebody else from
al-Hasan ibn Abi al-Hasan al-Basri and from Muhammad ibn Sirin that a
man in the time of the Messenger of Allah, may Allah bless him and
grant him peace, freed six of his slaves while he was dying. The
Messenger of Allah, may Allah bless him and grant him peace, drew lots
between them and freed a third of those slaves.
Malik added
that he had heard that the man did not have any property other than
them.
Malik related to me from Rabia ibn Abi Abd ar-Rahman that a man
in the time of Aban ibn Uthman's amirate freed all of his slaves and
did not have other property than them. Aban ibn Uthman took charge of
the slaves and they were divided into three groups. Then he drew lots
on the basis that which ever group drew the dead man's arrow would be
free. The arrow fell to one of the thirds, and that third was freed.
Malik related to me that he heard Ibn Shihab say, "The precedent
of the sunna is that when a slave is freed, his property follows him."
Malik said, "One thing which makes clear that the property of
a slave follows him when he is freed is that when the contract
(mukatab) is written for his freedom, his property follows him even if
he did not stipulate it. That is because the bond of kitaba is the
bond of wala' when it is complete. The property of a slave and a
mukatab is not treated in the same way as any children they may have.
Their children are only treated in the same way as their own slaves,
not in the same way as their property. This is because the sunna, in
which there is no dispute, is that when a slave is freed, his property
follows him and his children do not follow him, and when a mukatab
writes the contract for his freedom, his property follows him and his
children do not follow him."
Malik said, "One thing which
makes that clear is that when a slave or a mukatab are bankrupt, their
property is taken but the mothers of their children and their children
are not taken because they are not their property."
Malik
said, "Another thing which makes it clear is that when a slave is sold
and the person who buys him stipulates the inclusions of his property,
his children are not included in his property."
Malik said,
"Another thing which makes it clear is that when a slave does injure
some one, he and his property are taken, and his children are not
taken."
Malik related to me from Nafi from Abdullah ibn Umar that Umar
ibn al-Khattab said, "If a slave-girl gives birth to a child by her
master, he must not sell her, give her away, or bequeath her. He
enjoys her and when he dies she is free ."
Malik related to me that he had heard that a slave-girl came to
Umar ibn al-Khattab (who had been beaten by her master with a red hot
iron) and he set her free.
Malik said, "The generally agreed-
on way of doing things among us is that a man is not permitted to be
freed while he has a debt against him which exceeds his property. A
boy is not allowed to be set free until he has reached puberty. The
young person whose affairs are managed cannot set free in his
property, even when he reaches puberty, until he manages his
property."
USC-MSA web (English) reference : Book 38, Hadith 7
Hadith 514720
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
حَدَّثَنِي مَالِكٌ، عَنْ هِلاَلِ بْنِ أُسَامَةَ، عَنْ عَطَاءِ بْنِ يَسَارٍ، عَنْ عُمَرَ بْنِ الْحَكَمِ، أَنَّهُ قَالَ أَتَيْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم فَقُلْتُ يَا رَسُولَ اللَّهِ إِنَّ جَارِيَةً لِي كَانَتْ تَرْعَى غَنَمًا لِي فَجِئْتُهَا وَقَدْ فُقِدَتْ شَاةٌ مِنَ الْغَنَمِ فَسَأَلْتُهَا عَنْهَا فَقَالَتْ أَكَلَهَا الذِّئْبُ فَأَسِفْتُ عَلَيْهَا وَكُنْتُ مِنْ بَنِي آدَمَ فَلَطَمْتُ وَجْهَهَا وَعَلَىَّ رَقَبَةٌ أَفَأُعْتِقُهَا فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم " أَيْنَ اللَّهُ " . فَقَالَتْ فِي السَّمَاءِ . فَقَالَ " مَنْ أَنَا " . فَقَالَتْ أَنْتَ رَسُولُ اللَّهِ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَعْتِقْهَا " .
Malik related to me from Hilal ibn Usama from Ata ibn Yasar that
Umar ibn al-Hakam said, "I went to the Messenger of Allah, may Allah
bless him and grant him peace, and said, 'Messenger of Allah, a slave
girl of mine was tending my sheep. I came to her and one of the sheep
was lost. I asked her about it and she said that a wolf had eaten it,
so I became angry and I am one of the children of Adam, so I struck
her on the face. As it happens, I have to set a slave free, shall I
free her?' The Messenger of Allah, may Allah bless him and grant him
peace, questioned her, 'Where is Allah?' She said, 'In heaven.' He
said, 'Who am I?' She said, 'You are the Messenger of Allah.' The
Messenger of Allah, may Allah bless him and grant him peace, said,
'Free her.' "
USC-MSA web (English) reference : Book 38, Hadith 8
Hadith 514730
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
وَحَدَّثَنِي مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنْ عُبَيْدِ اللَّهِ بْنِ عَبْدِ اللَّهِ بْنِ عُتْبَةَ بْنِ مَسْعُودٍ، أَنَّ رَجُلاً، مِنَ الأَنْصَارِ جَاءَ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم بِجَارِيَةٍ لَهُ سَوْدَاءَ فَقَالَ يَا رَسُولَ اللَّهِ إِنَّ عَلَىَّ رَقَبَةً مُؤْمِنَةً فَإِنْ كُنْتَ تَرَاهَا مُؤْمِنَةً أُعْتِقُهَا . فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم " أَتَشْهَدِينَ أَنْ لاَ إِلَهَ إِلاَّ اللَّهُ " . قَالَتْ نَعَمْ . قَالَ " أَتَشْهَدِينَ أَنَّ مُحَمَّدًا رَسُولُ اللَّهِ قَالَتْ نَعَمْ . قَالَ " أَتُوقِنِينَ بِالْبَعْثِ بَعْدَ الْمَوْتِ " . قَالَتْ نَعَمْ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَعْتِقْهَا " .
Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah
ibn Utba ibn Masud that one of the Ansar came to the Messenger of
Allah, may Allah bless him and grant him peace, with a black slave-
girl of his. He said, "Messenger of Allah, I must set a slave free who
is a mumina. If you think that she is mumina, I will free her." The
Messenger of Allah, may Allah bless him and grant him peace,
questioned her, "Do you testify that there is no god but Allah?" She
said, "Yes." "Do you testify that Muhammad is the Messenger of Allah?"
She said, "Yes." "Are you certain about the rising after death?" She
said, "Yes." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Free her."
Malik related to me that he had heard that al-Maqburi said that
Abu Hurayra was asked whether a man who had to free a slave, could
free an illegitimate child to fulfil that obligation. Abu Hurayra
said, "Yes. That will give satisfaction for him."
USC-MSA web (English) reference : Book 38, Hadith 10
Hadith 514750
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
وَحَدَّثَنِي مَالِكٌ، أَنَّهُ بَلَغَهُ عَنْ فَضَالَةَ بْنِ عُبَيْدٍ الأَنْصَارِيِّ، وَكَانَ، مِنْ أَصْحَابِ رَسُولِ اللَّهِ صلى الله عليه وسلم أَنَّهُ سُئِلَ عَنِ الرَّجُلِ تَكُونُ عَلَيْهِ رَقَبَةٌ هَلْ يَجُوزُ لَهُ أَنْ يُعْتِقَ وَلَدَ زِنًا قَالَ نَعَمْ ذَلِكَ يُجْزِئُ عَنْهُ .
Malik related to me that he had heard that Fadala ibn Ubayd al-
Ansari who was one of the companions of the Messenger of Allah, may
Allah bless him and grant him peace, was asked whether it was
permissible for a man who had to free a slave to free an illegitimate
child. He said, "Yes, That will give satisfaction for him."
Malik related to me that he had heard that Abdullah ibn Umar was
asked whether a slave could be bought on the specific condition that
it was to be used to fulfil the obligation of freeing a slave, and he
said, "No."
Malik said, "That is the best of what I have
heard on the obligation of freeing slaves. Someone who has to set a
slave free because of an obligation on him, may not buy one on the
condition that he sets it free because if he does that, whatever he
buys is not completely a slave because he has reduced its price by the
condition he has made of setting it free."
Malik added,
"There is no harm, however, in someone buying a person expressly to
set him free."
Malik said, "The best of what I have heard on
the obligation of freeing slaves is that it is not permitted to free a
christian or a jew to fulfil it, and one does not free a mukatab or a
mudabbar or an umm walad or a slave to be freed after a certain number
of years, or a blind person. There is no harm in freeing a christian,
jew, or magian voluntarily, because Allah, the Blessed, the Exalted,
said in His Book, 'either as a favour then or by ransom,' (Sura 47
ayat 4) The favour is setting free."
Malik said, "As for
obligations of freeing slaves which Allah has mentioned in the Book,
one only frees a mumin slave for them."
Malik said, "It is
like that in feeding poor people for kaffara. One must only feed
muslims and one does not feed anyone outside of the deen of Islam."
USC-MSA web (English) reference : Book 38, Hadith 12
Hadith 514770
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
حَدَّثَنِي مَالِكٌ، عَنْ عَبْدِ الرَّحْمَنِ بْنِ أَبِي عَمْرَةَ الأَنْصَارِيِّ، أَنَّ أُمَّهُ، أَرَادَتْ أَنْ تُوصِيَ ثُمَّ أَخَّرَتْ ذَلِكَ إِلَى أَنْ تُصْبِحَ فَهَلَكَتْ وَقَدْ كَانَتْ هَمَّتْ بِأَنْ تُعْتِقَ فَقَالَ عَبْدُ الرَّحْمَنِ فَقُلْتُ لِلْقَاسِمِ بْنِ مُحَمَّدٍ أَيَنْفَعُهَا أَنْ أُعْتِقَ عَنْهَا فَقَالَ الْقَاسِمُ إِنَّ سَعْدَ بْنَ عُبَادَةَ قَالَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم إِنَّ أُمِّي هَلَكَتْ فَهَلْ يَنْفَعُهَا أَنْ أُعْتِقَ عَنْهَا فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" نَعَمْ " .
Malik related to me from Abd ar-Rahman ibn Abi Amra al-Ansari
that his mother had wanted to make a bequest, but she delayed until
morning and died. She had intended to set someone free, so Abd ar-
Rahman said, 'I said to al-Qasim ibn Muhammad, 'Will it help her if I
free a slave for her?' Al-Qasim replied, 'Sad ibn Ubada said to the
Messenger of Allah, may Allah bless him and grant him peace, 'My
mother died, will it help her if I set a slave free for her?' The
Messenger of Allah, may Allah bless him and grant him peace, said
"Yes." "'
USC-MSA web (English) reference : Book 38, Hadith 13
Hadith 514780
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
وَحَدَّثَنِي مَالِكٌ، عَنْ يَحْيَى بْنِ سَعِيدٍ، أَنَّهُ قَالَ تُوُفِّيَ عَبْدُ الرَّحْمَنِ بْنُ أَبِي بَكْرٍ فِي نَوْمٍ نَامَهُ فَأَعْتَقَتْ عَنْهُ عَائِشَةُ زَوْجُ النَّبِيِّ صلى الله عليه وسلم رِقَابًا كَثِيرَةً . قَالَ مَالِكٌ وَهَذَا أَحَبُّ مَا سَمِعْتُ إِلَىَّ فِي ذَلِكَ .
Malik related to me that Yahya ibn Said said, ''Abd ar-Rahman ibn
Abi Bakr died in his sleep, and A'isha, the wife of the Prophet, may
Allah bless him and grant him peace, set free many slaves for him."
Malik said, "This is what I like best of what I have heard on the
subject."
USC-MSA web (English) reference : Book 38, Hadith 14
Hadith 514790
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
حَدَّثَنِي مَالِكٌ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، عَنْ عَائِشَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم سُئِلَ عَنِ الرِّقَابِ أَيُّهَا أَفْضَلُ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" أَغْلاَهَا ثَمَنًا وَأَنْفَسُهَا عِنْدَ أَهْلِهَا " .
Malik related to me from Hisham ibn Urwa from his father from
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, that the Messenger of Allah, may Allah bless him and grant him
peace, was asked what was the most excellent kind of slave to free.
The Messenger of Allah, May Allah bless him and grant him peace,
answered, "The most expensive and the most valuable to his master."
USC-MSA web (English) reference : Book 38, Hadith 16
Hadith 514810
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
حَدَّثَنِي مَالِكٌ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، عَنْ عَائِشَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّهَا قَالَتْ جَاءَتْ بَرِيرَةُ فَقَالَتْ إِنِّي كَاتَبْتُ أَهْلِي عَلَى تِسْعِ أَوَاقٍ فِي كُلِّ عَامٍ أُوْقِيَّةٌ فَأَعِينِينِي . فَقَالَتْ عَائِشَةُ إِنْ أَحَبَّ أَهْلُكِ أَنْ أَعُدَّهَا لَهُمْ عَنْكِ عَدَدْتُهَا وَيَكُونَ لِي وَلاَؤُكِ فَعَلْتُ . فَذَهَبَتْ بَرِيرَةُ إِلَى أَهْلِهَا فَقَالَتْ لَهُمْ ذَلِكَ فَأَبَوْا عَلَيْهَا فَجَاءَتْ مِنْ عِنْدِ أَهْلِهَا وَرَسُولُ اللَّهِ صلى الله عليه وسلم جَالِسٌ فَقَالَتْ لِعَائِشَةَ إِنِّي قَدْ عَرَضْتُ عَلَيْهِمْ ذَلِكَ فَأَبَوْا عَلَىَّ إِلاَّ أَنْ يَكُونَ الْوَلاَءُ لَهُمْ . فَسَمِعَ ذَلِكَ رَسُولُ اللَّهِ صلى الله عليه وسلم فَسَأَلَهَا فَأَخْبَرَتْهُ عَائِشَةُ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " خُذِيهَا وَاشْتَرِطِي لَهُمُ الْوَلاَءَ فَإِنَّمَا الْوَلاَءُ لِمَنْ أَعْتَقَ " . فَفَعَلَتْ عَائِشَةُ ثُمَّ قَامَ رَسُولُ اللَّهِ صلى الله عليه وسلم فِي النَّاسِ فَحَمِدَ اللَّهَ وَأَثْنَى عَلَيْهِ ثُمَّ قَالَ " أَمَّا بَعْدُ فَمَا بَالُ رِجَالٍ يَشْتَرِطُونَ شُرُوطًا لَيْسَتْ فِي كِتَابِ اللَّهِ مَا كَانَ مِنْ شَرْطٍ لَيْسَ فِي كِتَابِ اللَّهِ فَهُوَ بَاطِلٌ وَإِنْ كَانَ مِائَةَ شَرْطٍ قَضَاءُ اللَّهِ أَحَقُّ وَشَرْطُ اللَّهِ أَوْثَقُ وَإِنَّمَا الْوَلاَءُ لِمَنْ أَعْتَقَ " .
Malik related to me from Hisham ibn Urwa from his father that
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, said, "Barira came to me and said, 'I have written myself as
mukatab for my people for nine uqiyas, one uqiya per year, so help
me.' A'isha said, 'If your people agree that I pay it all to them for
you, and that if I pay it, your wala' is mine, then I will do it.'
Barira went to her masters and told them that and they didn't agree.
She came back from her masters while the Messenger of Allah, may Allah
bless him and grant him peace, was sitting. She said to A'isha, 'I
offered that to them and they refused me unless they had the wala'.'
The Messenger of Allah, may Allah bless him and grant him peace, heard
that and asked her about it A'isha told him and the Messenger of
Allah, may Allah bless him and grant him peace, said, 'Take her and
stipulate that the wala' is yours, for the wala' is for the one who
sets free.' So A'isha did that and then the Messenger of Allah, may
Allah bless him and grant him peace, stood up in front of the people,
and praised Allah and gave thanks to Him. Then he said, 'What is wrong
with the people who make conditions which are not in the Book of
Allah? Any condition which is not in the Book of Allah is invalid even
if it is a hundred conditions. The decree of Allah is truer and the
conditions of Allah are firmer, and the wala' only belongs to the one
who sets free.' "
Malik related to me from Nafi from Abdullah ibn Umar that A'isha
umm al-muminin wanted to buy a slave-girl and set her free. Her people
said, "We will sell her to you provided that her wala' is ours." She
mentioned that to the Messenger of Allah, may Allah bless him and
grant him peace, and he said, "Don't let that hinder you, for the
wala' only belongs to the one who sets free."
USC-MSA web (English) reference : Book 38, Hadith 18
Hadith 514830
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
وَحَدَّثَنِي مَالِكٌ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، أَنَّ بَرِيرَةَ، جَاءَتْ تَسْتَعِينُ عَائِشَةَ أُمَّ الْمُؤْمِنِينَ فَقَالَتْ عَائِشَةُ إِنْ أَحَبَّ أَهْلُكِ أَنْ أَصُبَّ لَهُمْ ثَمَنَكِ صَبَّةً وَاحِدَةً وَأُعْتِقَكِ فَعَلْتُ . فَذَكَرَتْ ذَلِكَ بَرِيرَةُ لأَهْلِهَا فَقَالُوا لاَ إِلاَّ أَنْ يَكُونَ لَنَا وَلاَؤُكِ . قَالَ يَحْيَى بْنُ سَعِيدٍ فَزَعَمَتْ عَمْرَةُ أَنَّ عَائِشَةَ ذَكَرَتْ ذَلِكَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" اشْتَرِيهَا وَأَعْتِقِيهَا فَإِنَّمَا الْوَلاَءُ لِمَنْ أَعْتَقَ " .
Malik related to me from Yahya ibn Said from Amra bint Abd ar-
Rahman that Barira came asking the help of A'isha, umm al-muminin.
A'isha said, "If your masters agree that I pay them your price in one
lump sum and set you free I will do it." Barira mentioned that to her
masters and they said, "No, not unless your wala' is ours." Yahya ibn
Said added that Amra bint Abd ar-Rahman claimed that A'isha mentioned
that to the Messenger of Allah, may Allah bless him and grant him
peace, and the Messenger of Allah, may Allah bless him and grant him
peace said, "Buy her and set her free. The wala' only belongs to the
one who sets free."
USC-MSA web (English) reference : Book 38, Hadith 19
Hadith 514840
Chapter 38: Setting Free and Wala' - كتاب العتق والولاء
وَحَدَّثَنِي مَالِكٌ، عَنْ عَبْدِ اللَّهِ بْنِ دِينَارٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنْ بَيْعِ الْوَلاَءِ وَعَنْ هِبَتِهِ .
Malik related to me from Abdullah ibn Dinar from Abdullah ibn Umar that the Messenger of Allah, may Allah bless him and grant him peace, forbade selling or giving away the wala'.
Malik related to me from Rabia ibn Abd ar-Rahman that az-Zubayr ibn al-Awwam bought a slave and set him free. The slave had children by a free woman. When az-Zubayr freed him, he said, "They are my mawali." The man argued, "They are the mawali of their mother. Rather, they are our mawali." They took the dispute to Uthman ibn Affan, and Uthman gave a judgement that az-Zubayr had their wala'.
Malik related to me that he had heard that Said ibn al-Musayyab was asked who had the wala' of the children whom a slave had by a free woman. Said said, "If their father dies and he is a slave who was not set free, their wala' belongs to the mawali of their mother."
Malik said, "That is like the child of a woman who is a mawla who has been divorced by lian; the child is attached to the mawali of his mother and they are his mawali. If he dies, they inherit from him. If he commits a crime, they pay the blood-money for him. If his father acknowledges him, he is given a kinship to him and his wala' goes to the mawali of his father. They are his heirs, they pay his blood-money and his father is punished with the hadd-punishment."
Malik said, "It is like that with a free-born woman divorced by lian. If her husband who curses her by lian does not acknowledge her child, the child is dealt with in the same way except that the rest of his inheritance after the inheritance of his mother and his brothers from his mother goes to all the muslims as long as he was not given kinship to his father. The child of the lian is attached to the patronage of the mawali of his mother until his father acknowledges him because he does not have a lineage or paternal relations. If his lineage is confirmed, it goes to his paternal relations."
Malik said, "The generally agreed-on way of doing things among us about a child of a slave by a free woman, while the father of the slave is free, is that the grandfather (the father of the slave), attracts the wala' of his son's free children by a free woman. They leave their inheritance to him as long as their father is a slave. If the father becomes free, the wala' returns to his mawali. If he dies and he is still a slave, the inheritance and the wala' go to the grandfather. If the slave has two free sons, and one of them dies while the father is still a slave, the grandfather, the father of the father, attracts the wala' and the inheritance."
Malik spoke about a slave-girl who was set free while she was pregnant and her husband was a slave and then her husband became free before she gave birth, or after she gave birth. He said, "The wala' of what is in her womb goes to the person who set the mother free because slavery touched the child before the mother was set free. It is not treated in the same way as a child conceived by its mother after she has been set free because the wala' of such a child, is attracted by the father when he is set free."
Malik said that if a slave asked his master's permission to free a slave of his and his master gave permission, the wala' of the freed slave went to the master of his master, and his wala' did not return to the master who had set him free, even if he were to become free himself."
Malik related to me from Abdullah ibn Abi Bakr ibn Muhammad ibn
Amr ibn Hazm from Abd al-Malik ibn Abi Bakr ibn Abd ar-Rahman ibn al-
Harith ibn Hisham that his father told him that al-Asi ibn Hisham had
died and left three sons, two by one wife and one by another wife. One
of the two with the same mother died and left property and mawali. His
full brother inherited his property and the wala' of his mawali. Then
he also died, and left as heirs his son and his paternal half brother.
His son said, "I obtain what my father inherited of property and the
wala' of the mawali." His brother said, "It is not like that. You
obtain the property. As for the wala' of the mawali, it is not so. Do
you think that had it been my first brother who died today, I would
not have inherited from him?" They argued and went to Uthman ibn
Affan. He gave a judgement that the brother had the wala' of the
mawali.
Malik related to me from Abdullah ibn Abi Bakr ibn Hazm that his
father told him that he was sitting with Aban ibn Uthman, and an
argument was brought to him between some people from the Juhayna tribe
and some people from the Banu al-Harith ibn al-Khazraj. A woman of the
Juhayna tribe was married to a man from the Banu al-Harith ibn al-
Khazraj, called Ibrahim ibn Kulayb. She died and left property and
mawali, and her son and husband inherited them from her. Then her son
died and his heirs said, "We have the wala' of the mawali. Her son
obtained them." Those of the Juhayna said, "It is not like that. They
are the mawali of our female associate. When her child died, we have
their wala' and we inherit them." Aban ibn Uthman gave a judgement
that the people from the Juhayna tribe did indeed have the wala' of
the mawali.
Malik related to me that he had heard that Said ibn al-Musayyab
spoke about a man who died and left three sons and left mawali whom he
had freed. Then two of his sons died and left children. He said, "The
third remaining son inherits the mawali. When he dies, his children
and the children of his brothers share equally in the wala' of the
mawali."
Malik related to me that he had asked Ibn Shihab about a slave
who was released. He said, "He gives his wala' to whomever he likes.
If he dies and has not given his wala' to anyone, his inheritance goes
to the muslims and his blood-money is paid by them."
Malik
said, "The best of what has been heard about a slave who is released
is that no one gets his wala', and his inheritance goes to the
muslims, and they pay his blood-money."
Malik said that when
the slave of a jew or christian became muslim and he was freed before
being sold, the wala' of the freed slave went to the muslims. If the
jew or christian became muslim afterwards, the wala' did not revert to
him. "
He said, "However, if a jew or christian frees a slave
from their own deen, and then the freed one becomes muslim before the
jew or christian who freed him becomes muslim and then the one who
freed him has become muslim, his wala' reverts to him because the
wala' was confirmed for him on the day he freed him."
Malik
said that the muslim child of a jew or christian inherited the mawali
of his jewish or christian father when the freed mawla became muslim
before the one who freed him became muslim. If the freed one was
already muslim when he was freed, the muslim children of the christian
or jew had nothing of the wala' of a muslim slave because the jew and
the christian did not have the wala'. The wala' of a muslim slave went
to the community of muslims.
Malik related to me that he had heard that Urwa ibn az-Zubayr and
Sulayman ibn Yasar said, "The mukatab is a slave as long as any of his
kitaba remains to be paid."
Malik said, "This is my opinion
as well."
Malik said, "If a mukatab dies and leaves more
property than what remains to be paid of his kitaba and he has
children who were born during the time of his kitaba or whose kitaba
has been written as well, they inherit any property that remains after
the kitaba has been paid."
Malik related to me from Humayd ibn Qays al-Makki that a son of
al-Mutawakkil had a mukatab who died at Makka and left (enough to pay)
the rest of his kitaba and he owed some debts to people. He also left
a daughter. The governor of Makka was not certain about how to judge
in the case, so he wrote to Abd al-Malik ibn Marwan to ask him about
it. Abd al-Malik wrote to him, "Begin with the debts owed to people,
and then pay what remains of his kitaba. Then divide what remains of
the property between the daughter and the master."
Malik
said, "What is done among us is that the master of a slave does not
have to give his slave a kitaba if he asks for it. I have not heard of
any of the Imams forcing a man to give a kitaba to his slave. I heard
that one of the people of knowledge, when someone asked about that and
mentioned that Allah the Blessed, the Exalted, said, 'Give them their
kitaba, if you know some good in them' (Sura 24 ayat 33) recited these
two ayats, 'When you are free of the state of ihram, then hunt for
game.' (Sura 5 ayat 3) 'When the prayer is finished, scatter in the
land and seek Allah's favour.' " (Sura 62 ayat 10)
Malik
commented, "It is a way of doing things for which Allah, the Mighty,
the Majestic, has given permission to people, and it is not obligatory
for them." Malik said, "I heard one of the people of knowledge say
about the word of Allah, the Blessed, the Exalted, 'Give them of the
wealth which Allah has given you,' that it meant that a man give his
slave a kitaba and then reduce the end of his kitaba for him by some
specific amount."
Malik said, "This is what I have heard from
the people of knowledge and what I see people doing here."
Malik said, "I have heard that Abdullah ibn Umar gave one of his
slaves his kitaba for 35,000 dirhams, and then reduced the end of his
kitaba by 5,000 dirhams."
Malik said, "What is done among us
is that when a master gives a mukatab his kitaba, the mukatab's
property goes with him but his children do not go with him unless he
stipulates that in his kitaba."
Yahya said, "I heard Malik
say that if a mukatab whose master had given him a kitaba had a slave-
girl who was pregnant by him, and neither he nor his master knew that
on the day he was given his kitaba, the child did not follow him
because he was not included in the kitaba. He belonged to the master.
As for the slave-girl, she belonged to the mukatab because she was his
property."
Malik said that if a man and his wife's son (by
another husband) inherited a mukatab from the wife and the mukatab
died before he had completed his kitaba, they divided his inheritance
between them according to the Book of Allah. If the slave paid his
kitaba and then died, his inheritance went to the son of the woman,
and the husband had nothing of his inheritance.
Malik said
that if a mukatab gave his own slave a kitaba, the situation was
looked at. If he wanted to do his slave a favour and it was obvious by
his making it easy for him, that was not permitted. If he was giving
him a kitaba from desire to find money to pay off his own kitaba, that
was permitted for him.
Malik said that if a man had
intercourse with a mukataba of his and she became pregnant by him, she
had an option. If she liked she could be an umm walad. If she wished,
she could confirm her kitaba. If she did not conceive, she still had
her kitaba.
Malik said, "The generally agreed on way of doing
things among us about a slave who is owned by two men is that one of
them does not give a kitaba for his share, whether or not his
companion gives him permission to do so, unless they both write the
kitaba together, because that alone would effect setting him free. If
the slave were to fulfil what he had agreed on to free half of
himself, and then the one who had given a kitaba for half of him was
not obliged to complete his setting free, that would be in opposition
to the words of the Messenger of Allah, may Allah bless him and grant
him peace. 'If someone frees his share in a slave and has enough money
to cover the full price of the slave, justly evaluated for him, he
must give his partners their shares, so the slave is completely free .
' "
Malik said, "If he is not aware of that until the mukatab
has met the terms or before he has met them the owner who has written
him the kitaba returns what he has taken from the mukatab to him, and
then he and his partner divide him according to their original shares
and the kitaba is invalid. He is the slave of both of them in his
original state."
Malik spoke about a mukatab who was owned by
two men and one of them granted him a delay in the payment of the
right which he was owed, and the other refused to defer it, and so the
one who refused to defer the payment exacted his part of the due.
Malik said that if the mukatab then died and left property which did
not complete his kitaba, "They divide it according to what they are
still owed by him. Each of them takes according to his share. If the
mukatab leaves more than his kitaba, each of them takes what remains
to them of the kitaba, and what remains after that is divided equally
between them. If the mukatab is unable to pay his kitaba fully and the
one who did not allow him to defer his payment has exacted more than
his associate did, the slave is still divided equally between them,
and he does not return to his associates the excess of what he has
exacted, because he only exacted his right with the permission of his
associate. If one of them remits what is owed to him and then his
associate exacts part of what he is owed by him and then the mukatab
is unable to pay, he belongs to both of them. And the one who has
exacted something does not return anything because he only demanded
what he was owed. That is like the debt of two men in one writing
against one man. One of them grants him time to pay and the other is
greedy and exacts his due. Then the debtor goes bankrupt. The one who
exacted his due does not have to return any of what he took."
Malik related to me that he heard that Umm Salama, the wife of
the Prophet, may Allah bless him and grant him peace, made a
settlement with her mukatab for an agreed amount of gold and silver.
Malik said, "The generally agreed on way of doing things
among us in the case of a mukatab who is shared by two partners, is
that one of them cannot make a settlement with him for an agreed price
according to his portion without the consent of his partner. That is
because the slave and his property are owned by both of them, and so
one of them is not permitted to take any of the property except with
the consent of his partner. If one of them settled with the mukatab
and his partner did not, and he took the agreed price, and then the
mukatab died while he had property or was unable to pay, the one who
settled would not have anything of the mukatab's property and he could
not return that for which he made settlement so that his right to the
slave's person would return to him. However, when someone settles with
a mukatab with the permission of his partner and then the mukatab is
unable to pay, it is preferable that the one who broke with him return
what he has taken from the mukatab for the severance and he can have
back his portion of the mukatab. He can do that. If the mukatab dies
and leaves property, the partner who has kept hold of the kitaba is
paid in full the amount of the kitaba which remains to him against the
mukatab from the mukatab's property. Then what remains of property of
the mukatab is between the partner who broke with him and his partner,
according to their shares in the mukatab. If one of the partners
breaks off with him and the other keeps the kitaba, and the mukatab is
unable to pay, it is said to the partner who settled with him, 'If you
wish to give your partner half of what you took so the slave is
divided between you, then do so. If you refuse, then all of the slave
belongs to the one who held on to possession of the slave.' "
Malik spoke about a mukatab who was shared between two men and one of
them made a settlement with him with the permission of his partner.
Then the one who retained possession of the slave demanded the like of
that for which his partner had settled or more than that and the
mukatab could not pay it. He said, "The mukatab is shared between them
because the man has only demanded what is owed to him. If he demands
less than what the one who settled with him took and the mukatab can
not manage that, and the one who settled with him prefers to return to
his partner half of what he took so the slave is divided in halves
between them, he can do that. If he refuses then all of the slave
belongs to the one who did not settle with him. If the mukatab dies
and leaves property, and the one who settled with him prefers to
return to his companion half of what he has taken so the inheritance
is divided between them, he can do that. If the one who has kept the
kitaba takes the like of what the one who has settled with him took,
or more, the inheritance is between them according to their shares in
the slave because he is only taking his right."
Malik spoke
about a mukatab who was shared between two men and one of them made a
settlement with him for half of what was due to him with the
permission of his partner, and then the one who retained possession of
the slave took less than what his partner settled with him for and the
mukatab was unable to pay. He said, "If the one who made a settlement
with the slave prefers to return half of what he was awarded to his
partner, the slave is divided between them. If he refuses to return
it, the one who retained possession has the portion of the share for
which his partner made a settlement with the mukatab."
Malik
said, "The explanation of that is that the slave is divided in two
halves between them. They write him a kitaba together and then one of
them makes a settlement with the mukatab for half his due with the
permission of his partner. That is a fourth of all the slave. Then the
mukatab is unable to continue, so it is said to the one who settled
with him, 'If you wish, return to your partner half of what you were
awarded and the slave is divided equally between you.' If he refuses,
the one who held to the kitaba takes in full the fourth of his partner
for which he made settlement with the mukatab. He had half the slave,
so that now gives him three-fourths of the slave. The one who broke
off has a fourth of the slave because he refused to return the
equivalent of the fourth share for which he settled."
Malik
spoke about a mukatab whose master made a settlement with him and set
him free and what remained of his severance was written against him as
debt, then the mukatab died and people had debts against him. He said,
"His master does not share with the creditors because of what he is
owed from the severance. The creditors begin first."
Malik
said, "A mukatab cannot break with his master when he owes debts to
people. He would be set free and have nothing because the people who
hold the debts are more entitled to his property than his master. That
is not permitted for him."
Malik said, "According to the way
things are done among us, there is no harm if a man gives a kitaba to
his slave and settles with him for gold and reduces what he is owed of
the kitaba provided that only the gold is paid immediately. Whoever
disapproves of that does so because he puts it in the category of a
debt which a man has against another man for a set term. He gives him
a reduction and he pays it immediately. This is not like that debt.
The breaking of the mukatab with his master is dependent on his giving
money to speed up the setting free. Inheritance, testimony and the
hudud are obliged for him and the inviolability of being set free is
established for him. He is not buying dirhams for dirhams or gold for
gold. Rather it is like a man who having said to his slave, 'Bring me
such-and-such an amount of dinars and you are free', then reduces that
for him, saying, 'If you bring me less than that, you are free.' That
is not a fixed debt. Had it been a fixed debt, the master would have
shared with the creditors of the mukatab when he died or went
bankrupt. His claim on the property of the mukatab would join theirs."
Malik related to me that he heard that Urwa ibn az-Zubayr and
Sulayman ibn Yasar when asked whether the sons of a man, who had a
kitaba written for himself and his children and then died, worked for
the kitaba of their father or were slaves, said, "They work for the
kitaba of their father and they have no reduction at all for the death
of their father."
Malik said, "If they are small and unable
to work, one does not wait for them to grow up and they are slaves of
their father's master unless the mukatab has left what will pay their
instalments for them until they can work. If there is enough to pay
for them in what he has left, that is paid for on their behalf and
they are left in their condition until they can work, and then if they
pay, they are free. If they cannot do it, they are slaves."
Malik spoke about a mukatab who died and left property which was not
enough to pay his kitaba, and he also left a child with him in his
kitaba and an umm walad, and the umm walad wanted to work for them. He
said, "The money is paid to her if she is trustworthy with it and
strong enough to work. If she is not strong enough to work and not
trustworthy with property, she is not given any of it and she and the
children of the mukatab revert to being slaves of the master of the
mukatab."
Malik said, "If people are written together in one
kitaba and there is no kinship between them, and some of them are
incapable and others work until they are all set free, those who
worked can claim from those who were unable, the portion of what they
paid for them because some of them assumed the responsibility for
others."
Malik related to me that he heard Rabia ibn Abi Abd ar-Rahman and
others mention that al-Furafisa ibn Umar al-Hanafi had a mukatab who
offered to pay him all of his kitaba that he owed. Al-Furafisa refused
to accept it and the mukatab went to Marwan ibn al-Hakam who was the
amir of Madina and brought up the matter. Marwan summoned al-Furafisa
and told him to accept. He refused. Marwan then ordered that the
payment be taken from the mukatab and placed in the treasury. He said
to the mukatab "Go, you are free." When al-Furafisa saw that, he took
the money.
Malik said, "What is done among us when a mukatab
pays all the instalments he owes before their term, is that it is
permitted to him. The master cannot refuse him that. That is because
payment removes every condition from the mukatab as well as service
and travel. The setting free of a man is not complete while he has any
remaining slavery, and neither would his inviolability as a free man
be complete and his testimony permitted and inheritance obliged and
such things in that situation. His master must not make any
stipulation of service on him after he has been set free."
Malik said that it was permitted for a mukatab who became extremely
ill and wanted to pay his master all his instalments because his heirs
who were free would then inherit from him and he had no children with
him in his kitaba, to do so, because by that he completed his
inviolability as a free man, his testimony was permitted, and his
admission of what he owed of debts to people was permitted. His
bequest was permitted as well. His master could not refuse him that by
saying, "He is escaping from me with his property."
Malik related to me that he had heard that Said ibn al-Musayyab
was asked about a mukatab who was shared between two men. One of them
freed his portion and then the mukatab died and left a lot of money.
Said replied, "The one who kept his kitaba is paid what remains due to
him, and then they divide what is left between them both equally."
Malik said, "When a mukatab who fulfils his kitaba and
becomes free dies, he is inherited from by the people who wrote his
kitaba and their children and paternal relations - whoever is most
deserving."
He said, "This is also for whoever is set free
when he dies after being set free - his inheritance is for the nearest
people to him of children or paternal relations who inherit by means
of the wala'."
Malik said, "Brothers, written together in the
same kitaba, are in the same position as children to each other when
none of them have children written in the kitaba or born in the
kitaba. When one of them dies and leaves property, he pays for them
all that is against them of their kitaba and sets them free. The money
left over after that goes to his children rather than his brothers."
Malik related to me from Nafi that Abdullah ibn Umar made two of
his slave-girls mudabbara, and he had intercourse with them while they
were mudabbara.
Malik related to me from Yahya ibn Said that Said ibn al-Musayyab
used to say, "When a man makes his slave-girl mudabbara, he can have
intercourse with her. He cannot sell her or give her away and her
children are in the same position as her."
Malik related to me that he heard that Umar ibn Abd al-Aziz gave
a judgement about the mudabbar who did an injury. He said, "The master
must surrender what he owns of him to the injured person. He is made
to serve the injured person and recompense (in the form of service) is
taken from him as the blood-money of the injury. If he completes that
before his master dies, he reverts to his master."
Malik
said, "The generally agreed on way of doing things in our community
about a mudabbar who does an injury and then his master dies and the
master has no property except him is that the third (allowed to be
bequeathed) is freed, and then the blood-money for the in jury is
divided into thirds. A third of the blood-money is against the third
of him which was set free, and two-thirds are against the two-thirds
which the heirs have. If they wish, they surrender what they have of
him to the party with the injury, and if they wish, they give the
injured person two-thirds of the blood-money and keep their portion of
the slave. That is because that injury is a criminal action by the
slave and it is not a debt against the master by which whatever
setting free and tadbir the master had done would be abrogated. If
there were a debt to people held against the master of the slave, as
well as the criminal action of the slave, part of the mudabbar would
be sold in proportion to the blood-money of the injury and according
to the debt. Then one would begin with the blood-money which was for
the criminal action of the slave and it would be paid from the price
of the slave. Then the debt of his master would be paid, and then one
would look at what remained after that of the slave. His third would b
be set free, and two-thirds of him would belong to the heirs. That is
because the criminal action of the slave is more important than the
debt of his master. That is because, if the man dies and leaves a
mudabbar slave whose value is one hundred and fifty dinars, and the
slave strikes a free man on the head with a blow that lays open the
skull, and the blood-money is fifty dinars, and the master of the
slave has a debt of fifty dinars, one begins with the fifty dinars
which are the blood-money of the head wound, and it is paid from the
price of the slave. Then the debt of the master is paid. Then one
looks at what remains of the slave, and a third of him is set free and
two-thirds of him remain for the heirs. The blood-money is more
pressing against his person than the debt of his master. The debt of
his master is more pressing than the tadbir which is a bequest from
the third of the property of the deceased. None of the tadbir is
permitted while the master of the mudabbar has a debt which is not
paid. It is a bequest. That is because Allah, the Blessed, the
Exalted, said, 'After any bequest that is made or any debt.' " (Sura 4
ayat 10)
Malik said, "If there is enough in the third
property that the deceased can bequeath to free all the mudabbar, he
is freed and the blood-money due from his criminal action is held as a
debt against him which follows him after he is set free even if that
blood-money is the full blood-money. It is not a debt on the master."
Malik spoke about a mudabbar who injured a man and his master
surrendered him to the injured party, and then the master died and had
a debt and did not leave any property other than the mudabbar, and the
heirs said, "We surrender the mudabbar to the party," whilst the
creditor said, "My debt exceeds that." Malik said that if the
creditor's debt did exceed that at all , he was more entitled to it
and it was taken from the one who owed the debt, according to what the
creditor was owed in excess of the blood-money of the injury. If his
debt did not exceed it at all, he did not take the slave.
Malik spoke about a mudabbar who did an injury and had property, and
his master refused to ransom him. He said, "The injured party takes
the property of the mudabbar for the blood-money of his injury. If
there is enough to pay it, the injured party is paid in full for the
blood-money of his injury and the mudabbar is returned to his master.
If there is not enough to pay it, he takes it from the blood-money and
uses the mudabbar for what remains of the blood-money."
USC-MSA web (English) reference : Book 40, Hadith 7
Hadith 515020
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنَا مَالِكٌ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّهُ قَالَ جَاءَتِ الْيَهُودُ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَذَكَرُوا لَهُ أَنَّ رَجُلاً مِنْهُمْ وَامْرَأَةً زَنَيَا فَقَالَ لَهُمْ رَسُولُ اللَّهِ صلى الله عليه وسلم
" مَا تَجِدُونَ فِي التَّوْرَاةِ فِي شَأْنِ الرَّجْمِ " . فَقَالُوا نَفْضَحُهُمْ وَيُجْلَدُونَ . فَقَالَ عَبْدُ اللَّهِ بْنُ سَلاَمٍ كَذَبْتُمْ إِنَّ فِيهَا الرَّجْمَ . فَأَتَوْا بِالتَّوْرَاةِ فَنَشَرُوهَا فَوَضَعَ أَحَدُهُمْ يَدَهُ عَلَى آيَةِ الرَّجْمِ ثُمَّ قَرَأَ مَا قَبْلَهَا وَمَا بَعْدَهَا فَقَالَ لَهُ عَبْدُ اللَّهِ بْنُ سَلاَمٍ ارْفَعْ يَدَكَ فَرَفَعَ يَدَهُ فَإِذَا فِيهَا آيَةُ الرَّجْمِ فَقَالُوا صَدَقَ يَا مُحَمَّدُ فِيهَا آيَةُ الرَّجْمِ . فَأَمَرَ بِهِمَا رَسُولُ اللَّهِ صلى الله عليه وسلم فَرُجِمَا . فَقَالَ عَبْدُ اللَّهِ بْنُ عُمَرَ فَرَأَيْتُ الرَّجُلَ يَحْنِي عَلَى الْمَرْأَةِ يَقِيهَا الْحِجَارَةَ .
Malik related to me from Nafi that Abdullah ibn Umar said, "The
Jews came to the Messenger of Allah, may Allah bless him and grant him
peace, and mentioned to him that a man and woman from among them had
committed adultery. The Messenger of Allah, may Allah bless him and
grant him peace, asked them, 'What do you find in the Torah about
stoning?' They said, 'We make their wrong action known and flog them.'
Abdullah ibn Salam said, 'You have lied! It has stoning for it, so
bring the Torah.' They spread it out and one of them placed his hand
over the ayat of stoning. Then he read what was before it and what was
after it. Abdullah ibn Salam told him to lift his hand. He lifted his
hand and there was the ayat of stoning. They said, 'He has spoken the
truth, Muhammad. The ayat of stoning is in it.' So the Messenger of
Allah, may Allah bless him and grant him peace, gave the order and
they were stoned . "
Abdullah ibn Umar added, "I saw the man
leaning over the woman to protect her from the stones."
Malik
commented, "By leaning he meant throwing himself over her so that the
stones fell on him."
USC-MSA web (English) reference : Book 41, Hadith 1
Hadith 515030
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنِي مَالِكٌ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ رَجُلاً، مِنْ أَسْلَمَ جَاءَ إِلَى أَبِي بَكْرٍ الصِّدِّيقِ فَقَالَ لَهُ إِنَّ الأَخِرَ زَنَا . فَقَالَ لَهُ أَبُو بَكْرٍ هَلْ ذَكَرْتَ هَذَا لأَحَدٍ غَيْرِي فَقَالَ لاَ . فَقَالَ أَبُو بَكْرٍ فَتُبْ إِلَى اللَّهِ وَاسْتَتِرْ بِسِتْرِ اللَّهِ فَإِنَّ اللَّهَ يَقْبَلُ التَّوْبَةَ عَنْ عِبَادِهِ . فَلَمْ تُقْرِرْهُ نَفْسُهُ حَتَّى أَتَى عُمَرَ بْنَ الْخَطَّابِ فَقَالَ لَهُ مِثْلَ مَا قَالَ لأَبِي بَكْرٍ فَقَالَ لَهُ عُمَرُ مِثْلَ مَا قَالَ لَهُ أَبُو بَكْرٍ فَلَمْ تُقْرِرْهُ نَفْسُهُ حَتَّى جَاءَ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَ لَهُ إِنَّ الأَخِرَ زَنَا فَقَالَ سَعِيدٌ فَأَعْرَضَ عَنْهُ رَسُولُ اللَّهِ صلى الله عليه وسلم ثَلاَثَ مَرَّاتٍ كُلُّ ذَلِكَ يُعْرِضُ عَنْهُ رَسُولُ اللَّهِ صلى الله عليه وسلم حَتَّى إِذَا أَكْثَرَ عَلَيْهِ بَعَثَ رَسُولُ اللَّهِ صلى الله عليه وسلم إِلَى أَهْلِهِ فَقَالَ " أَيَشْتَكِي أَمْ بِهِ جِنَّةٌ " . فَقَالُوا يَا رَسُولَ اللَّهِ وَاللَّهِ إِنَّهُ لَصَحِيحٌ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَبِكْرٌ أَمْ ثَيِّبٌ " . فَقَالُوا بَلْ ثَيِّبٌ يَا رَسُولَ اللَّهِ . فَأَمَرَ بِهِ رَسُولُ اللَّهِ صلى الله عليه وسلم فَرُجِمَ .
Malik related to me from Yahya ibn Said from Said ibn al-Musayyab
that a man from the Aslam tribe came to Abu Bakr as-Siddiq and said to
him, "I have committed adultery." Abu Bakr said to him, "Have you
mentioned this to anyone else?" He said, "No." Abu Bakr said to him,
"Then cover it up with the veil of Allah. Allah accepts tawba from his
slaves." His self was still unsettled, so he went to Umar ibn al-
Khattab. He told him the same as he had said to Abu Bakr, and Umar
told him the same as Abu Bakr had said to him. His self was still not
settled so he went to the Messenger of Allah, may Allah bless him and
grant him peace, and said to him, "I have committed adultery,"
insistently. The Messenger of Allah, may Allah bless him and grant him
peace, turned away from him three times. Each time the Messenger of
Allah, may Allah bless him and grant him peace, turned away from him
until it became too much. The Messenger of Allah, may Allah bless him
and grant him peace, questioned his family, "Does he have an illness
which affects his mind, or is he mad?" They said, "Messenger of Allah,
by Allah, he is well." The Messenger of Allah, may Allah bless him and
grant him peace, said, "Unmarried or married?" They said, "Married,
Messenger of Allah." The Messenger of Allah, may Allah bless him and
grant him peace, gave the order and he was stoned.
Malik related to me from Yahya ibn Said that Said ibn al-Musayyab
said, "I have heard that the Messenger of Allah, may Allah bless him
and grant him peace, said to a man from the Aslam tribe called Hazzal,
'Hazzal, had you veiled him with your cloak, it would have been better
for you.' "
Yahya ibn Said said, "I related this hadith in an
assembly among whom was Yazid ibn Nuaym ibn Hazzal al-Aslami. Yazid
said, 'Hazzal was my grandfather. This hadith is true.' "
USC-MSA web (English) reference : Book 41, Hadith 3
Hadith 515050
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنِي مَالِكٌ، عَنِ ابْنِ شِهَابٍ، أَنَّهُ أَخْبَرَهُ . أَنَّ رَجُلاً اعْتَرَفَ عَلَى نَفْسِهِ بِالزِّنَا عَلَى عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم وَشَهِدَ عَلَى نَفْسِهِ أَرْبَعَ مَرَّاتٍ فَأَمَرَ بِهِ رَسُولُ اللَّهِ صلى الله عليه وسلم فَرُجِمَ . قَالَ ابْنُ شِهَابٍ فَمِنْ أَجْلِ ذَلِكَ يُؤْخَذُ الرَّجُلُ بِاعْتِرَافِهِ عَلَى نَفْسِهِ
Malik related to me that Ibn Shihab informed him that a man
confessed that he had committed adultery in the time of the Messenger
of Allah, may Allah bless him and grant him peace, and he testified
against himself four times, so the Messenger of Allah, may Allah bless
him and grant him peace, gave the order and he was stoned.
Ibn Shihab said, "Because of this a man is to be taken for his own
confession against himself."
USC-MSA web (English) reference : Book 41, Hadith 4
Hadith 515060
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنِي مَالِكٌ، عَنْ يَعْقُوبَ بْنِ زَيْدِ بْنِ طَلْحَةَ، عَنْ أَبِيهِ، زَيْدِ بْنِ طَلْحَةَ عَنْ عَبْدِ اللَّهِ بْنِ أَبِي مُلَيْكَةَ، أَنَّهُ أَخْبَرَهُ أَنَّ امْرَأَةً جَاءَتْ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَأَخْبَرَتْهُ أَنَّهَا زَنَتْ وَهِيَ حَامِلٌ فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم " اذْهَبِي حَتَّى تَضَعِي " . فَلَمَّا وَضَعَتْ جَاءَتْهُ فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم " اذْهَبِي حَتَّى تُرْضِعِيهِ " . فَلَمَّا أَرْضَعَتْهُ جَاءَتْهُ فَقَالَ " اذْهَبِي فَاسْتَوْدِعِيهِ " . قَالَ فَاسْتَوْدَعَتْهُ ثُمَّ جَاءَتْ فَأَمَرَ بِهَا فَرُجِمَتْ .
Malik related to me from Yaqub ibn Zayd ibn Talha from his father
Zayd ibn Talha that Abdullah ibn Abi Mulayka informed him that a woman
came to the Messenger of Allah, may Allah bless him and grant him
peace, and informed him that she had committed adultery and was
pregnant. The Messenger of Allah, may Allah bless him and grant him
peace, said to her, "Go away until you give birth." When she had given
birth, she came to him. The Messenger of Allah, may Allah bless him
and grant him peace, said to her, "Go away until you have suckled and
weaned the baby." When she had weaned the baby, she came to him. He
said, "Go and entrust the baby to someone." She entrusted the baby to
someone and then came to him. He gave the order and she was stoned.
Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah
ibn Utba ibn Masud that Abu Hurayra and Zayd ibn Khalid al-Juhani
informed him that two men brought a dispute to the Messenger of Allah,
may Allah bless him and grant him peace. One of them said, "Messenger
of Allah! Judge between us by the Book of Allah!" The other said, and
he was the wiser of the two, "Yes, Messenger of Allah. Judge between
us by the Book of Allah and give me permission to speak." He said,
"Speak." He said, "My son was hired by this person and he committed
fornication with his wife. He told me that my son deserved stoning,
and I ransomed him for one hundred sheep and a slave-girl. Then I
asked the people of knowledge and they told me that my son deserved to
be flogged with one hundred lashes and exiled for a year, and they
informed me that the woman deserved to be stoned." The Messenger of
Allah, may Allah bless him and grant him peace, said, "By him in whose
Hand myself is, I will judge between you by the Book of Allah. As for
your sheep and slave girl, they should be returned to you. Your son
should have one hundred lashes and be exiled for a year." He ordered
Unays al-Aslami to go to the wife of the other man and to stone her if
she confessed . She confessed and he stoned her.
USC-MSA web (English) reference : Book 41, Hadith 6
Hadith 515080
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنِي مَالِكٌ، عَنْ سُهَيْلِ بْنِ أَبِي صَالِحٍ، عَنْ أَبِيهِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ سَعْدَ بْنَ عُبَادَةَ، قَالَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم أَرَأَيْتَ لَوْ أَنِّي وَجَدْتُ مَعَ امْرَأَتِي رَجُلاً أَأُمْهِلُهُ حَتَّى آتِيَ بِأَرْبَعَةِ شُهَدَاءَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" نَعَمْ " .
Malik related to me from Suhayl ibn Abi Salih from his father
from Abu Hurayra that Sad ibn Ubada said to the Messenger of Allah,
may Allah bless him and grant him peace, "What do you think I should
do if I were to find a man with my wife? Should I leave him there
until I had brought four witnesses?" The Messenger of Allah, may Allah
bless him and grant him peace, said, "Yes."
Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah
ibn Utba ibn Masud that Abdullah ibn Abbas said, "I heard Umar ibn al-
Khattab say, 'Stoning is in the Book of Allah for those who commit
adultery, men or women when they are muhsan and when there is clear
proof of pregnancy or a confession.' "
Malik related to me from Yahya ibn Said from Sulayman ibn Yasar
from Abu Waqid al-Laythi that a man came to Umar ibn al-Khattab while
he was in ash-Sham . He mentioned to him that he had found a man with
his wife Umar sent Abu Waqid al-Laythi to the wife to question her
about that. He came to her while there were women around her and
mentioned to her what her husband had mentioned to Umar ibn al-
Khattab, and informed her that she would not be punished on his word
and began to suggest to her by that, that she should retract. She
refused to retract and held firm to confession. Umar gave the order
and she was stoned.
Malik related to me that Yahya ibn Said heard Said ibn al-
Musayyab say, "When Umar ibn al-Khattab came from Mina, he made his
camel kneel at al-Abtah, and then he gathered a pile of small stones
and cast his cloak over them and dropped to the ground. Then he raised
his hands to the sky and said, 'O Allah! I have become old and my
strength has weakened. My flock is scattered. Take me to You with
nothing missed out and without having neglected anything.' Then he
went to Madina and addressed the people. He said, 'People! Sunan have
been laid down for you. Obligations have been placed upon you. You
have been left with a clear way unless you lead people astray right
and left.' He struck one of his hands on the other and then said,
'Take care lest you destroy the ayat of stoning so that one will say,
"We do not find two hadds in the Book of Allah." The Messenger of
Allah, may Allah bless him and grant him peace, stoned, so we have
stoned. By He in Whose Hand my self is, had it not been that people
would say that Umar ibn al-Khattab has added to the Book of Allah ta-
ala, we would have written it, "The full-grown man and the full-grown
woman, stone them absolutely." We have certainly recited that.'"
Malik said, "Yahya ibn Said said Said ibn al-Musayyab said,
'Dhu'l-Hijja had not passed before Umar was murdered, may Allah have
mercy on him.' "
Yahya said that he had heard Malik say, "As
for his words 'The full-grown man and the full-grown woman' he meant,
'The man and the woman who have been married, stone them absolutely.'
"
Malik related to me that he had heard that Uthman ibn Affan was
brought a woman who had given birth after six months and he ordered
her to be stoned. Ali ibn Abi Talib said to him, "She does not deserve
that. Allah, the Blessed, the Exalted, says in His Book, 'Their
carrying and weaning is thirty months,' (Sura 46 ayat 15) and he said,
'Mothers suckle their children for two full years for whoever wishes
to complete the suckling.' (Sura 2 ayat 233) Pregnancy can then be six
months, so she does not deserve to be stoned." Uthman ibn Affan sent
for her and found that she had already been stoned.
Malik
related to me that he asked Ibn Shihab about someone who committed
sodomy. Ibn Shihab said, "He is to be stoned, whether or not he is
muhsan."
USC-MSA web (English) reference : Book 41, Hadith 11
Hadith 515130
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنِي مَالِكٌ، عَنْ زَيْدِ بْنِ أَسْلَمَ، أَنَّ رَجُلاً، اعْتَرَفَ عَلَى نَفْسِهِ بِالزِّنَا عَلَى عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم فَدَعَا لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم بِسَوْطٍ فَأُتِيَ بِسَوْطٍ مَكْسُورٍ فَقَالَ " فَوْقَ هَذَا " . فَأُتِيَ بِسَوْطٍ جَدِيدٍ لَمْ تُقْطَعْ ثَمَرَتُهُ فَقَالَ " دُونَ هَذَا " . فَأُتِيَ بِسَوْطٍ قَدْ رُكِبَ بِهِ وَلاَنَ فَأَمَرَ بِهِ رَسُولُ اللَّهِ صلى الله عليه وسلم فَجُلِدَ ثُمَّ قَالَ " أَيُّهَا النَّاسُ قَدْ آنَ لَكُمْ أَنْ تَنْتَهُوا عَنْ حُدُودِ اللَّهِ مَنْ أَصَابَ مِنْ هَذِهِ الْقَاذُورَاتِ شَيْئًا فَلْيَسْتَتِرْ بِسِتْرِ اللَّهِ فَإِنَّهُ مَنْ يُبْدِي لَنَا صَفْحَتَهُ نُقِمْ عَلَيْهِ كِتَابَ اللَّهِ " .
Malik related to me from Zayd ibn Aslam that a man confessed to
fornication in the time of the Messenger of Allah, may Allah bless him
and grant him peace. The Messenger of Allah, may Allah bless him and
grant him peace, called for a whip, and he was brought a broken whip.
He said, "Above this," and he was brought a new whip whose knots had
not been cut yet. He said, "Below this," and he was brought a whip
which had been used and made flexible. The Messenger of Allah, may
Allah bless him and grant him peace, gave the order and he was
flogged. Then he said, "People! The time has come for you to observe
the limits of Allah. Whoever has had any of these ugly things befall
him should cover them up with the veil of Allah. Whoever reveals to us
his wrong action, we perform what is in the Book of Allah against
him."
Malik related to me from Nafi that Safiyya bint Abi Ubayd
informed him that a man who had had intercourse with a virgin slave-
girl and made her pregnant was brought to Abu Bakr as-Siddiq. He
confessed to fornication, and he was not muhsan. Abu Bakr gave the
order and he was flogged with the hadd punishment. Then he was
banished to Fadak, (thirty miles from Madina).
Malik spoke
about a person who confessed to fornication and then retracted it and
said, "I didn't do it. I said that for such-and-such a reason," and he
mentioned the reason. Malik said, "That is accepted from him and the
hadd is not imposed on him. That is because the hadd is what is for
Allah, and it is only applied by one of two means, either by a clear
proof which establishes guilt or by a confession which is persisted in
so that the hadd is imposed. If someone persists in his confession,
the hadd is imposed on him."
Malik said, "I have not seen the
people of knowledge exiling slaves who have committed adultery."
Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah
ibn Utba ibn Masud from Abu Hurayra and Zayd ibn Khalid al-Juhani that
the Messenger of Allah, may Allah bless him and grant him peace, was
asked about a slave-girl who committed fornication and was not
muhsana. He said, "If she commits fornication, then flog her. If she
commits fornication again, then flog her, and if she commits
fornication again, then sell her, if only for a rope."
Ibn
Shihab added, "I don't know whether it was three or four times."
Malik related to me from Nafi that a slave was in charge of the
slaves in the khumus and he forced a slave-girl among those slaves
against her will and had intercourse with her. Umar ibn al-Khattab had
him flogged and banished him, and he did not flog the slave-girl
because the slave had forced her.
Malik related to me from Yahya ibn Said that Sulayman ibn Yasar
informed him that Abdullah ibn Abbas ibn Abi Rabia al-Makhzumi said,
"Umar ibn al-Khattab gave me orders about the slaves of Quraysh and we
flogged some of the slave-girls of the muslim lands fifty times each
for fornication."
Malik related to me from Abu'z-Zinad that he said, ''Umar ibn Abd
al-Aziz flogged a slave with eighty lashes for slander."
Abu'z-Zinad said, "I asked Abdullah ibn Amir ibn Rabia about that. He
said, 'I saw Umar ibn al-Khattab, Uthman ibn Affan, the Khalifs, and
so on, and I did not see any of them flog a slave more than forty
lashes for slander.' "
Malik related to me from Zurayq ibn Hakim al-Ayli that a man
called Misbah asked his son for help and he thought him unnecessarily
slow. When the son came, his father said to him, "O fornicator."
Zurayq said, "So the son asked me to help him against the father. When
I wanted to flog him, his son said, 'By Allah, if you flog him, I will
acknowledge that I have committed fornication.' When he said that, the
situation was confused for me, so I wrote about it to Umar ibn Abd al-
Aziz who was the governor at that time, and I mentioned it to him.
Umar wrote me to permit his pardon."
Zurayq said, "I wrote to
Umar ibn Abd al-Aziz also, 'What do you think about a man who is
slandered or his parents are slandered and both or only one of them
are dead?' He said, Umar wrote to me, 'If he forgives, his pardon is
permitted for himself. If his parents are slandered and one or both of
them are dead, take the judgement of the Book of Allah for it unless
he wants to veil it.' "
Yahya said, "I heard Malik say, 'That
is because the slandered man might fear that if that is unveiled about
him, a clear proof might be established. If it is according to what we
have described, his pardon is permitted."
Malik related to me from Hisham ibn Urwa that his father said
that there was only one hadd against a man who slandered a group of
people.
Malik said, "If they are on separate occasions there
is still only one hadd against him."
Malik related to me from
Abu'r-Rijal Muhammad ibn Abd ar-Rahman ibn Haritha ibn an-Numan al-
Ansari, then from the Banu'n-Najar from his mother Amra bint Abd ar-
Rahman that two men cursed each other in the time of Umar ibn al-
Khattab. One of them said to the other, " By Allah, my father is not
an adulterer and my mother is not an adulteress." Umar ibn al-Khattab
asked advice about that. One person said, "He has praised his father
and mother." Another said, "His father and mother have praise other
than this. We think that he is to be flogged with the hadd." So Umar
flogged him with the hadd of eighty lashes.
Malik said,
"There is no hadd in our view except for slander, denial or
insinuation, in which one sees that the speaker intends by that denial
or slander. Then the hadd is completely imposed on the one who said
it."
Malik said, "What is done in our community when a man
denies that another man is from his father, is that he deserves the
hadd. If the mother who is denied is a slave, then he deserves the
hadd as well. '
Malik related to me from Rabia ibn Abi Abd ar-Rahman that Umar
ibn al-Khattab spoke about a man who went out with his wife's slave-
girl on a journey and had intercourse with her and then the wife
became jealous and mentioned that to Umar ibn al-Khattab. Umar
questioned him about it. He said, "She gave her to me." Umar said,
"Bring me a clear proof or I will stone you." Rabia added, "The wife
confessed that she had given her to him."
USC-MSA web (English) reference : Book 41, Hadith 20
Hadith 515230
Chapter 41: Hudud - كتاب الحدود
حَدَّثَنِي مَالِكٌ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَطَعَ فِي مِجَنٍّ ثَمَنُهُ ثَلاَثَةُ دَرَاهِمَ .
Malik related to me from Nafi from Abdullah ibn Umar that the
Messenger of Allah, may Allah bless him and grant him peace, cut off
the hand of a man who stole a shield whose price was three dirhams.
Yahya related to me from Malik from Abdullah ibn Abd ar-Rahman
abu Husayn al-Makki that the Messenger of Allah, may Allah bless him
and grant him peace, said, "The hand is not cut off for fruit hanging
on the tree and for sheep kept in the mountains. So when they are
taken from the fold or the place where the fruit is dried, a hand is
cut off for whatever reaches the price of a shield."
Yahya related to me from Malik from Abdullah ibn Abi Bakr from
his father from Amra bint Abd ar-Rahman that a thief stole a citron in
the time of Uthman Uthman ibn Affan ordered its value to be estimated
and it was estimated at three dirhams at the rate of exchange of
twelve dirhams for the dinar, so Uthman cut off his hand.
USC-MSA web (English) reference : Book 41, Hadith 23
Hadith 515260
Chapter 41: Hudud - كتاب الحدود
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، عَنْ عَائِشَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّهَا قَالَتْ مَا طَالَ عَلَىَّ وَمَا نَسِيتُ
" الْقَطْعُ فِي رُبُعِ دِينَارٍ فَصَاعِدًا " .
Yahya related to me from Malik from Yahya ibn Said from Amra bint
Abd ar-Rahman that A'isha, the wife of the Prophet, may Allah bless
him and grant him peace, said, "It has not been a long time for me and
I have not forgotten. A thief's hand is cut off for a quarter of a
dinar and upwards."
USC-MSA web (English) reference : Book 41, Hadith 24
Hadith 515270
Chapter 41: Hudud - كتاب الحدود
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ أَبِي بَكْرِ بْنِ حَزْمٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، أَنَّهَا قَالَتْ خَرَجَتْ عَائِشَةُ زَوْجُ النَّبِيِّ صلى الله عليه وسلم إِلَى مَكَّةَ وَمَعَهَا مَوْلاَتَانِ لَهَا وَمَعَهَا غُلاَمٌ لِبَنِي عَبْدِ اللَّهِ بْنِ أَبِي بَكْرٍ الصِّدِّيقِ فَبَعَثَتْ مَعَ الْمَوْلاَتَيْنِ بِبُرْدٍ مُرَجَّلٍ قَدْ خِيطَ عَلَيْهِ خِرْقَةٌ خَضْرَاءُ قَالَتْ فَأَخَذَ الْغُلاَمُ الْبُرْدَ فَفَتَقَ عَنْهُ فَاسْتَخْرَجَهُ وَجَعَلَ مَكَانَهُ لِبْدًا أَوْ فَرْوَةً وَخَاطَ عَلَيْهِ فَلَمَّا قَدِمَتِ الْمَوْلاَتَانِ الْمَدِينَةَ دَفَعَتَا ذَلِكَ إِلَى أَهْلِهِ فَلَمَّا فَتَقُوا عَنْهُ وَجَدُوا فِيهِ اللِّبْدَ وَلَمْ يَجِدُوا الْبُرْدَ فَكَلَّمُوا الْمَرْأَتَيْنِ فَكَلَّمَتَا عَائِشَةَ زَوْجَ النَّبِيِّ صلى الله عليه وسلم أَوْ كَتَبَتَا إِلَيْهَا وَاتَّهَمَتَا الْعَبْدَ فَسُئِلَ الْعَبْدُ عَنْ ذَلِكَ فَاعْتَرَفَ فَأَمَرَتْ بِهِ عَائِشَةُ زَوْجُ النَّبِيِّ صلى الله عليه وسلم فَقُطِعَتْ يَدُهُ وَقَالَتْ عَائِشَةُ الْقَطْعُ فِي رُبُعِ دِينَارٍ فَصَاعِدًا .
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Hazim that Amra bint Abd ar-Rahman said, "A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, went out to Makka
and she had two girl mawlas of hers and a slave belonging to the sons
of Abdullah ibn Abi Bakr as-Siddiq . She sent a figured cloak with the
two mawlas which was sewn up in a piece of green cloth."
Amra
continued, "The slave took it and unstitched it and took out the
cloak. In its place, he put some felt or skin and sewed it up again.
When the mawla girls came to Madina, they gave it to his people. When
they opened it, they found felt in it and did not find the cloak. They
spoke to the two women and they spoke to A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, or they wrote to her
and suspected the slave. The slave was asked about it and confessed.
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, gave the order and his hand was cut off. A'isha said, 'A
thief's hand is cut off for a quarter of a dinar and upwards.' "
Malik said, "The limit I prefer above which cutting off the hand
is obliged is three dirhams, whether the exchange is high or low. That
is because the Messenger of Allah, may Allah bless him and grant him
peace, cut off the hand of a thief for a shield whose value was three
dirhams, and Uthman ibn Affan cut off the hand of a thief for a citron
which was estimated at three dirhams. This is what I prefer of what I
have heard on the matter."
Yahya related to me from Malik from Nafi that a slave of Abdullah
ibn Umar stole while he was a runaway. Abdullah ibn Umar sent him to
Said ibn al-As, who was the amir of Madina, to cut off his hand. Said
refused to cut off his hand. He said, "The hand of a runaway slave is
not cut off when he steals." Abdullah ibn Umar said to him, "In what
Book of Allah did you find this?" Then Abdullah ibn Umar gave the
order, and his hand was cut off.
Yahya related to me from Malik that Zurayq ibn Hakim informed him
that he had a runaway slave who had stolen. He said, "The situation
was obscure for me, so I wrote to Umar ibn Abd al-Aziz to ask him
about it. He was the governor at that time. I informed him that I had
heard that if a runaway slave stole while he was a fugitive, his hand
was not cut off. 'Umar ibn Abd al-Aziz wrote to contradict my letter,
'You wrote to me that you have heard that when the runaway slave
steals, his hand is not cut off. Allah, the Blessed, the Exalted, says
in His Book, 'The thief, male and female, cut off the hands of both,
as a recompense for what they have earned, and an exemplary punishment
from Allah. Allah is Mighty, Wise.' (Sura 5 ayat 41) When his theft
reaches a quarter of a dinar, and upwards, his hand is cut off.' "
Yahya related to me from Malik that he had heard that al-
Qasim ibn Muhammad and Salim ibn Abdullah and Urwa ibn az-Zubayr said,
"When a runaway slave steals something for which cutting off the hand
is obliged, his hand is cut off."
Malik said, "The way of
doing things amongst us about which there is no dispute is that when
the runaway slave steals that for which cutting off the hand is
obliged, his hand is cut off."
USC-MSA web (English) reference : Book 41, Hadith 27
Hadith 515310
Chapter 41: Hudud - كتاب الحدود
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ صَفْوَانَ بْنِ عَبْدِ اللَّهِ بْنِ صَفْوَانَ، أَنَّ صَفْوَانَ بْنَ أُمَيَّةَ، قِيلَ لَهُ إِنَّهُ مَنْ لَمْ يُهَاجِرْ هَلَكَ . فَقَدِمَ صَفْوَانُ بْنُ أُمَيَّةَ الْمَدِينَةَ فَنَامَ فِي الْمَسْجِدِ وَتَوَسَّدَ رِدَاءَهُ فَجَاءَ سَارِقٌ فَأَخَذَ رِدَاءَهُ فَأَخَذَ صَفْوَانُ السَّارِقَ فَجَاءَ بِهِ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَسَرَقْتَ رِدَاءَ هَذَا " . قَالَ نَعَمْ . فَأَمَرَ بِهِ رَسُولُ اللَّهِ صلى الله عليه وسلم أَنْ تُقْطَعَ يَدُهُ فَقَالَ لَهُ صَفْوَانُ إِنِّي لَمْ أُرِدْ هَذَا يَا رَسُولَ اللَّهِ هُوَ عَلَيْهِ صَدَقَةٌ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " فَهَلاَّ قَبْلَ أَنْ تَأْتِيَنِي بِهِ " .
Yahya related to me from Malik from Ibn Shihab from Safwan ibn
Abdullah ibn Safwan that it was said to Safwan ibn Umayya, "Whoever
does not do hijra is ruined." So Safwan ibn Umayya went to Madina and
slept in the mosque with his cloak as a pillow. A thief came and took
his cloak and Safwan grabbed hold of the thief and brought him to the
Messenger of Allah, may Allah bless him and grant him peace. The
Messenger of Allah, may Allah bless him and grant him peace, said to
him, "Did you steal this cloak?" He said, "Yes." So the Messenger of
Allah, may Allah bless him and grant him peace, ordered that his hand
be cut off. Safwan said to him, "I did not intend this. It is his as
sadaqa." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Why didn't you do it before bringing him to me?"
Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahman
that az-Zubayr ibn al-Awwam came across a man who had taken hold of a
thief and was intending to take him to the Sultan. Az-Zubayr ibn al-
Awwam interceded for him to let him go. He said, "No. Not until I take
him to the Sultan." Az-Zubayr said, "When you reach the Sultan with
him, Allah curses the one who intercedes and the one who accepts the
intercession."
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that a man from Yemen who had his hand and foot cut
off came and went before Abu Bakr as-Siddiq and complained to him that
the governor of the Yemen had wronged him, and the man used to pray
part of the night. Abu Bakr said, "By your father, your night is not
the night of a thief." Then they missed a necklace of Asma bint Umays,
the wife of Abu Bakr as-Siddiq. The man came to go around with them
looking for it. He said, "O Allah! You are responsible for the one who
invaded the people of this good house by night!" They found the
jewelry with a goldsmith. He claimed that the maimed man had brought
it to him. The maimed man confessed or it was testified against him.
Abu Bakr as-Siddiq ordered that his left hand be cut off. Abu Bakr
said, "By Allah! His dua against himself is more serious, as far as I
am concerned, than his theft."
Yahya said that Malik said,
"What is done among us about the person who steals several times and
is then called to reckoning, is that only his hand is cut off for all
he stole when the hadd has not been applied againsthim. If the hadd
has been applied against him before that, and he steals what obliges
cutting off, then the next limb is cut off."
Yahya related to me from Malik that Abu'z-Zinad informed him that
a governor of Umar ibn Abd al-Aziz took some people in battle and had
not killed any of them. He wanted to cut off their hands or kill them,
so he wrote to Umar ibn Abd al-Aziz about that Umar ibn Abd al-Aziz
wrote to him, "Better to take less than that."
Yahya said
that he heard Malik say, "What is done among us about a person who
steals the goods of people which are placed under guard in the
markets, and their owners put them in their containers and store them
together is that if anyone steals any of that from where it is kept,
and its value reaches that for which cutting off the hand is obliged,
his hand must be cut off, whether or not the owner of the goods is
with his goods and whether it is night or day."
Malik said
about some one who stole something for which cutting off the hand was
obliged and then what he stole was found with him and he returned it
to its owner, "His hand is cut off."
Malik said, "If someon
says, 'How can his hand be cut off when the goods have been taken from
him and returned to their owner?', it is because he is in the same
position as the wine drinker when the smell of the wine is found on
his breath and he is not drunk. He is flogged with the hadd.
"The hadd is imposed for drinking wine even if it does not make the
man intoxicated. That is because he drank it to become intoxicated. It
is the same as that with cutting off the hand of the thief for theft
when it is taken from him, even if he has not profited from it and it
was returned to its owner. When he stole it, he stole it to take it
away."
Malik said that if some people came to a house and
robbed it together, and then they left with a sack or box or a board
or basket or the like of that which they carried together, and when
they took it out of its guarded place, they carried it together, and
the price of what they took reached that for which cutting off the
hand was obliged, and that was three dirhams and upwards, each of them
had his hand cut off.
"If each of them takes out something by
himself, whoever of them takes out something whose value reaches three
dirhams and upwards must have his hand cut off. If any of them takes
out something whose value does not reach three dirhams, he does not
have his hand cut off."
Yahya said that Malik said, "What is
done among us is that when a man's house is locked and he is the only
one living in it, cutting off the hand is not obliged against the one
who steals something from it until he takes it out of the house
completely. That is because all of the house is a place of custody. If
someone other than him lives in the house and each of them locks his
door, and it is a place of custody for each of them, whoever steals
anything from the apartments of that house must have his hand cut off
when he leaves the apartment and goes into the main house. He has
removed it from its place of custody to another place and he must have
his hand cut off."
Malik said, "What is done in our community
about a slave who steals from the property of his master is that if he
is not in service and among those trusted in the house and he enters
secretly and steals from his master something that for which cutting
off the hand is obliged, his hand is not cut off. It is like that with
a slave-girl when she steals from her master's property. Her hand is
not cut off."
Malik then spoke about a slave who was not in
service and not one of those trusted in the house, and he entered
secretly and stole from the property of his master's wife that for
which cutting off the hand was obliged. He said, "His hand is cut
off."
"It is like that with the wife's slave-girl when she
does not serve her or her husband nor is she trusted in the house and
she enters secretly and steals from her mistress's property that for
which cutting off the hand is obliged. Her hand is not cut off."
"It is like that with the wife's slave-girl who is not in her
service and is not trusted in the house and she enters secretly and
steals from the property of her mistress's husband something for which
cutting off the hand is obliged. Her hand is cut off."
It is
like that with the man who steals from his wife's goods or the wife
who steals from her husband's goods something for which cutting off
the hand is obliged. If the thing which one of them steals from his
spouse's property is in a room other than the room which they both
lock for themselves, or it is in a place of custody in a room other
than the room which they are in, whichever of them steals something
for which cutting off the hand is obliged, their hand should be cut
off."
Malik spoke about a small child and a foreigner who
does not speak clearly. He said, "If they are robbed of something from
its place of custody or from under a lock, the one who stole it has
his hand cut off. If the property is outside of its place of custody
or locked room(when it is stolen), the one who robbed them does not
have his hand cut off. It is then in the position of sheep stolen from
the mountain and uncut fruit hanging on the trees "
Malik
said, "What is done among us about a person who robs graves is that if
what he takes from the grave reaches what cutting off the hand is
obliged for, his hand is cut off . That is because the grave is a
place of custody for what is in it just as houses are a place of
custody for what is in them. "
Malik added, "Cutting off the
hand is not obliged for him until he takes it out of the grave."
Yahya related to me from Malik from Yahya ibn Said from Muhammad
ibn Yahya ibn Habban that a slave stole a small palm from a man's
garden and planted it in the garden of his master. The owner of the
palm went out looking for the palm and found it. He asked for help
against the slave from Marwan ibn al-Hakam. Marwan jailed the slave
and wanted to cut off his hand. The master of the slave rushed off to
Rafi ibn Khadij and asked him about it. Rafi informed him that he
heard the Messenger of Allah, may Allah bless him and grant him peace,
say, "The hand is not cut off for fruit or palm pith." The man said,
"Marwan ibn al-Hakam has taken a slave of mine and wants to cut off
his hand. I would like you to go with me to him so you can tell him
what you heard from the Messenger of Allah, may Allah bless him and
grant him peace." So, Rafi went with him to Marwan ibn al-Hakam. He
said, "Did you arrest a slave for this?" He said, "Yes." He said,
"What will you do with him?" He said, "I want to cut off his hand."
Rafi said to him, "I heard the Messenger of Allah, may Allah bless him
and grant him peace, say, 'The hand is not cut off for dates or palm
pith.' Marwan therefore ordered the slave to be released."
Yahya related to me from Malik from Ibn Shihab from as-Sa'ib ibn
Yazid that Abdullah ibn Amr ibn al-Hadrami brought a slave of his to
Umar ibn al-Khattab and said to him, "Cut off the hand of this slave
of mine. He has stolen." Umar said to him, "What did he steal?" He
said, "He stole a mirror belonging to my wife. Its value was sixty
dirhams." Umar said, "Let him go. His hand is not to be cut off. He is
your servant who has stolen your belongings."
Yahya related to me from Malik from Ibn Shihab that Marwan ibn
al-Hakam was brought a man who had snatched some goods and he wanted
to cut off his hand. He sent to Zayd ibn Thabit to ask him about it.
Zayd ibn Thabit said to him, "The hand is not cut off for what is
stolen by chance, openly, in haste."
Yahya related to me from Malik that Yahya ibn Said said that Abu
Bakr ibn Muhammad ibn Amr ibn Hazm informed him that he had taken a
Nabatean who had stolen some iron rings and jailed him in order to cut
off his hand. Amra bint Abd ar-Rahman sent a girl mawla to him called
Umayya. Abu Bakr said that she had come to him while he was among the
people and said that his aunt Amra sent word to him saying, "Son of my
brother! You have taken a Nabatean for something insignificant which
was mentioned to me. Do you want to cut off his hand?" He had said,
"Yes." She said, ''Amra says to you not to cut off the hand except for
a quarter of a dinar and upwards."
Abu Bakr added, "So I let
the Nabatean go."
Malik said, "The generally agreed on way of
doing things among us about the confession of slaves is that if a
slave confesses something against himself, the hadd and punishment for
it is inflicted on his body. His confession is accepted from him and
one does not suspect that he would inflict something on himself."
Malik said, "As for the one of them who confesses to a matter
which will incur damages agains this master, his confession is not
accepted against his master."
Malik said, "One does not cut
off the hand of a hireling or a man who is with some people to serve
them, if he robs them, because his state is not the state of a thief.
His state is the state of a treacherous one. The treacherous one does
not have his hand cut off."
Malik said about a person who
borrows something and then denies it, "His hand is not cut off. He is
like a man who owes a debt to another man and denies it. He does not
have his hand cut off for what he has denied."
Malik said,
"The generally agreed-on way of dealing among us, with the thief who
is found in a house and has gathered up goods and has not taken them
out, is that his hand is not cut off. That is like the man who places
wine before him to drink it and does not do it. The hadd is not
imposed on him. That is like a man who sits with a woman and desires
to have haram intercourse with her and does not do it and he does not
reach her. There is no hadd against that either."
Malik said,
"The generally agreed-on way of doing things among us is that there is
no cutting off the hand for what is taken by chance, openly and in
haste, whether or not its price reaches that for which the hand is cut
off."
Yahya related to me from Malik from Ibn Shihab that as-Sa'ib ibn
Yazid informed him that Umar ibn al-Khattab came out to them. He said,
"I have found the smell of wine on so-and-so, and he claimed that it
was the drink of boiled fruit juice, and I am inquiring about what he
has drunk. If it intoxicates, I will flog him." Umar then flogged him
with the complete hadd.
Yahya related to me from Malik from Thawr ibn Zayd ad-Dili that
Umar ibn al-Khattab asked advice about a man drinking wine. Ali ibn
Abi Talib said to him, "We think that you flog him for it with eighty
lashes. Because when he drinks, he becomes intoxicated, and when he
becomes intoxicated, he talks confusedly, and when he talks
confusedly, he lies." (80 lashes is the same amount as for slandering)
Umar gave eighty lashes for drinking wine.
Yahya related to me from Malik from Ibn Shihab that he was asked
about the hadd of the slave for wine. He said, "I heard that he has
half the hadd of a freeman for drinking wine. Umar ibn al-Khattab,
Uthman ibn Affan, and Abdullah ibn Umar flogged their slaves with half
of the hadd of a freeman when they drank wine."
Yahya related to me from Malik from Yahya ibn Said that he heard
Said ibn al-Musayyab say, "There is nothing that Allah does not like
to be pardoned as long as it is not a hadd."
Yahya said that
Malik said, "The sunna with us is that the hadd is obliged against
anyone who drinks something intoxicating whether or not he becomes
drunk."
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,
addressed the people in one of his raids. Abdullah ibn Umar said, "I
went towards him, but he finished before I reached him. I asked about
what he had said. Someone said to me, 'He forbade preparing nabidh in
a gourd or in a jug smeared with pitch.'"
USC-MSA web (English) reference : Book 42, Hadith 5
Hadith 515460
Chapter 42: Drinks - كتاب الأشربة
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنِ الْعَلاَءِ بْنِ عَبْدِ الرَّحْمَنِ بْنِ يَعْقُوبَ، عَنْ أَبِيهِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى أَنْ يُنْبَذَ فِي الدُّبَّاءِ وَالْمُزَفَّتِ .
Yahya related to me from Malik from al-Ala ibn Abd ar-Rahman ibn
Yaqub from his father from Abu Hurayra that the Messenger of Allah,
may Allah bless him and grant him peace, forbade preparing nabidh in a
gourd or in a jug smeared with pitch.
USC-MSA web (English) reference : Book 42, Hadith 6
Hadith 515480
Chapter 42: Drinks - كتاب الأشربة
وَحَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ زَيْدِ بْنِ أَسْلَمَ، عَنْ عَطَاءِ بْنِ يَسَارٍ، . أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى أَنْ يُنْبَذَ الْبُسْرُ وَالرُّطَبُ جَمِيعًا وَالتَّمْرُ وَالزَّبِيبُ جَمِيعًا .
Yahya related to me from Malik from Zayd ibn Aslam from Ata ibn
Yasar that the Messenger of Allah, may Allah bless him and grant him
peace, forbade preparing nabidh from nearly ripe dates and fresh dates
together, and from dates and raisins together.
USC-MSA web (English) reference : Book 42, Hadith 7
Hadith 515490
Chapter 42: Drinks - كتاب الأشربة
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنِ الثِّقَةِ، عِنْدَهُ عَنْ بُكَيْرِ بْنِ عَبْدِ اللَّهِ بْنِ الأَشَجِّ، عَنْ عَبْدِ الرَّحْمَنِ بْنِ الْحُبَابِ الأَنْصَارِيِّ، عَنْ أَبِي قَتَادَةَ الأَنْصَارِيِّ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى أَنْ يُشْرَبَ التَّمْرُ وَالزَّبِيبُ جَمِيعًا وَالزَّهْوُ وَالرُّطَبُ جَمِيعًا .
Yahya related to me from Malik from a reliable source from Bukayr
ibn Abdullah ibn al-Ashajj from Abd ar-Rahman ibn al-Hubab al-Ansari
from Abu Qatada al-Ansari that the Messenger of Allah, may Allah bless
him and grant him peace, forbade making nabidh from dates and raisins
together, and nearly ripe dates and fresh dates together.
Malik said, "That is the way of doing things among us in which the
people of knowledge in our city continue. It is disapproved of because
the Messenger of Allah, may Allah bless him and grant him peace,
forbade it."
USC-MSA web (English) reference : Book 42, Hadith 8
Hadith 515510
Chapter 42: Drinks - كتاب الأشربة
وَحَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ أَبِي سَلَمَةَ بْنِ عَبْدِ الرَّحْمَنِ، عَنْ عَائِشَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّهَا قَالَتْ سُئِلَ رَسُولُ اللَّهِ صلى الله عليه وسلم عَنِ الْبِتْعِ فَقَالَ
" كُلُّ شَرَابٍ أَسْكَرَ فَهُوَ حَرَامٌ " .
Yahya related to me from Malik from ibn Shihab from Abu Salama
ibn Abd ar-Rahman that A'isha, the wife of the Prophet, may Allah
bless him and grant him peace, said, "The Messenger of Allah, may
Allah bless him and grant him peace, was asked about mead, and he
replied, 'Every drink which intoxicates is haram.' "
Yahya related to me from Malik from Zayd ibn Aslam from Ata ibn
Yasar that the Messenger of Allah, may Allah bless him and grant him
peace, was asked about al-Ghubayra. He said, "There is no good in it,"
and forbade it. Malik said, "I asked Zayd ibn Aslam, 'What is al-
Ghubayra?' He said, 'It is an intoxicant.' "
USC-MSA web (English) reference : Book 42, Hadith 10
Hadith 515530
Chapter 42: Drinks - كتاب الأشربة
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَنْ شَرِبَ الْخَمْرَ فِي الدُّنْيَا ثُمَّ لَمْ يَتُبْ مِنْهَا حُرِمَهَا فِي الآخِرَةِ " .
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 "Whoever drinks wine in this world and does not turn from it in
tawba, it is haram for him in the Next World."
USC-MSA web (English) reference : Book 42, Hadith 11
Hadith 515550
Chapter 42: Drinks - كتاب الأشربة
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ زَيْدِ بْنِ أَسْلَمَ، عَنِ ابْنِ وَعْلَةَ الْمِصْرِيِّ، . أَنَّهُ سَأَلَ عَبْدَ اللَّهِ بْنَ عَبَّاسٍ عَمَّا يُعْصَرُ مِنَ الْعِنَبِ فَقَالَ ابْنُ عَبَّاسٍ أَهْدَى رَجُلٌ لِرَسُولِ اللَّهِ صلى الله عليه وسلم رَاوِيَةَ خَمْرٍ فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَمَا عَلِمْتَ أَنَّ اللَّهَ حَرَّمَهَا " . قَالَ لاَ . فَسَارَّهُ رَجُلٌ إِلَى جَنْبِهِ . فَقَالَ لَهُ صلى الله عليه وسلم " بِمَ سَارَرْتَهُ " . فَقَالَ أَمَرْتُهُ أَنْ يَبِيعَهَا . فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " إِنَّ الَّذِي حَرَّمَ شُرْبَهَا حَرَّمَ بَيْعَهَا " . فَفَتَحَ الرَّجُلُ الْمَزَادَتَيْنِ حَتَّى ذَهَبَ مَا فِيهِمَا .
Yahya related to me from Malik from Zayd ibn Aslam that Ibn Wala
al-Misri asked Abdullah ibn Abbas about what is squeezed from the
grapes. Ibn Abbas replied, "A man gave the Messenger of Allah, may
Allah bless him and grant him peace, a small water-skin of wine. The
Messenger of Allah, may Allah bless him and grant him peace, said to
him, 'Don't you know that Allah has made it haram?' He said, 'No.'
Then a man at his side whispered to him. The Messenger of Allah, may
Allah bless him and grant him peace, asked what he had whispered, and
the man replied, 'I told him to sell it.' The Messenger of Allah, may
Allah bless him and grant him peace, said, 'The One who made drinking
it haram has made selling it haram.' The man then opened the water-
skins and poured out what was in them ."
Yahya related to me from Malik from Ishaq ibn Abdullah ibn Abi
Talha that Anas ibn Malik said, "I was serving wine to Abu Ubayda ibn
al-Jarrah and Abu Talha al-Ansari and Umayy ibn Kab. The wine had been
prepared from crushed ripe dates and dried dates. Someone came to them
and said, 'Wine has been made haram.' Abu Talha ordered me to go and
take the jugs and break them. I stood up and went to a mortar of ours
and I struck them with the bottom of it until they broke."
Yahya related to me from Malik from Da'ud ibn al-Husayn that
Waqid ibn Amr ibn Sad ibn Muadh informed him from Mahmud ibn Labid al-
Ansari that when Umar ibn al-Khattab went to ash-Sham, the people of
ash-Sham complained to him about the bad air of their land and its
heaviness. They said, "Only this drink helps." Umar said, "Drink this
honey preparation." They said, "Honey does not help us." A man from
the people of that land said, "Can we give you something of this drink
which does not intoxicate?" He said, "Yes." They cooked it until two-
thirds of it evaporated and one-third of it remained. Then they
brought it to Umar. Umar put his finger in it and then lifted his head
and extended it. He said, "This is fruit juice concentrated by
boiling. This is like the distillation with which you smear the
camel's scabs." Umar ordered them to drink it. Ubada ibn as-Samit said
to him, "You have made it halal, by Allah!" Umar said, "No, by Allah!
O Allah! I will not make anything halal for them which You have made
haram for them! I will not make anything haram for them which You have
made halal for them."
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that some men from Iraq said to him, "Abu Abd ar-Rahman, we buy the
fruit of the palm and grapes and we squeeze them into wine and we sell
it." Abdullah ibn Umar said, "I call on Allah and His angels and
whoever hears of jinn and men to testify to you that I order you not
to buy it nor sell it nor to press it nor to drink it nor to give it
to people to drink. It is something impure from the work of Shaytan."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm from his father that in a letter which the
Messenger of Allah, may Allah bless him and grant him peace, sent to
Amr ibn Hazm about blood-money he wrote that it was one hundred camels
for a life, one hundred camels for a nose if completely removed, a
third of the blood-money for a wound in the brain, the same as that
for a belly wound, fifty for an eye, fifty for a hand, fifty for a
foot, ten camels for each finger, and five for teeth, and five for a
head wound which laid bare the bone.
Malik related to me that he had heard that Umar ibn al-Khattab
estimated the full blood-money for the people of urban areas. For
those who had gold, he made it one thousand dinars. and for those who
had silver he made it ten thousand dirhams.
Malik said, "The
people of gold are the people of ash-Sham and the people of Egypt. The
people of silver are the people of Iraq "
Yahya related to me
from Malik that he heard that the blood-money was divided into
instalments over three or four years.
Malik said, "Three is
the most preferable to me of what I have heard on that."
Malik said, "The generally agreed on way of doing things in our
community is that camels are not accepted from the people of cities
for blood-money nor is gold or silver accepted from the desert people.
Silver is not accepted from the people of gold and gold is not
accepted from the people of silver."
Yahya related to me from Malik that Ibn Shihab said, "The full
blood-money for murder when it is accepted is twenty-five yearlings,
twenty-five two-year-olds, twenty-five four-year-olds, and twenty-five
five-year-olds."