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 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 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 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 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 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 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 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 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 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 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 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 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."