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).
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."
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."
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."
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."
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."
"A distinction is made between
the fruit and the child of the slave-girl. The Messenger of Allah, may
Allah bless him and grant him peace, said, 'If someone sells a palm
which has been pollinated, the fruit belongs to the seller unless the
buyer stipulates its inclusion.' The undisputed way of doing things in
our community is that if a man sells a slave-girl or an animal with a
foetus in its womb, the foetus belongs to the buyer, whether or not
the buyer stipulates it. The palm is not like the animal. Fruit is not
like the foetus in its mother's womb. Part of what clarifies that is
also that it is the usage of people to have a man pawn the fruit of
the palm apart from the palm. No one pawns the foetus in its mother's
womb whether of slaves or animals."
Malik said, "All this applies when the broker takes the
pledge and does not put it in the hands of another."
Yahya said
that he heard Malik say about a slave whose master had pledged him and
the slave had property of his own, "The property of the slave is not
part of the pledge unless the broker stipulates that."
Yahya said that he heard Malik
say, "What is done in our community about two men who have a dispute
about an amount of money loaned on the security of a pledge - the
pledger claiming that he pledged it for ten dinars and the broker
insisting that he took the pledge as security for twenty dinars, and
the pledge is clearly in the possession of the broker - is that the
broker is made to take an oath when the value of the pledge is fully
known. If the value of the pledge is exactly what he swore that he had
loaned on security for it, the broker takes the pledge as his right.
He is more entitled to take precedence with an oath since he has
possession of the pledge. If the owner of the pledge wants to give him
the amount which he swore that he was owed, he can take the pledge
back. If the pledge is worth less than the twenty dinars he loaned,
then it is said to the pledger, 'Either you give him what he has sworn
to and take your pledge back, or you swear to what you said you
pledged it for.' If the pledger takes the oath, then what the broker
has increased over the value of the pledge will become invalid. If the
pledger does not take an oath, he must pay what the broker swore to."
Malik said, "If a pledge given on security for a loan
perishes, and both parties deny each other's rights, with the broker
who is owed the loan saying that he gave twenty dinars, and the
pledger who owes the loan saying that he was given only ten, and with
the broker who is owed the loan saying the pledge was worth ten
dinars, and the broker who owes the loan saying it was worth twenty,
then the broker who is owed the loan is asked to describe the pledge.
If he describes it, he must take an oath on its description. Then
people with experience of it evaluate that description. If the value
of the pledge is estimated to be more than what the broker claims it
was, he takes an oath as to what he claimed, and the pledger is given
what is over from the value of the pledge. If its value is less than
what the broker claims of it, he is made to take an oath as to what he
claims is his. Then he demands settlement according to the actual
value of the pledge. The one who owes the loan is then made to take an
oath on the extra amount which remains owing against him to the
claimant after the price of the pledge is reached. That is because the
broker becomes a claimant against the pledger. If he takes an oath,
the rest of what the broker swore to of what he claimed above the
value of the pledge is invalidated. If he draws back, he is bound to
pay what remains due to the broker after the value of the pledge."
Malik said,
"That is what is done with people who overstep and dispute about what
they took the animal for."
Malik said, "It is also like that
with some one who takes qirad-money from his companion. The owner of
the property says to him, 'Do not buy such-and-such animals or such-
and-such goods.' He names them and forbids them and disapproves of his
money being invested in them. The one who takes the money then buys
what he was forbidden. By that, he intends to be liable for the money
and take the profit of his companion. When he does that, the owner of
the money has an option. If he wants to enter with him in the goods
according to the original stipulations between them about the profit,
he does so. If he likes, he has his capital guaranteed against the one
who took the capital and over stepped the mark."
Malik said,
"It is also like that with a man with whom another man invests some
goods. The owner of the property orders him to buy certain goods for
him which he names. He differs, and buys with the goods something
other than what he was ordered to buy. He exceeded his orders. The
owner of the goods has an option. If he wants to take what was bought
with his property, he takes it. If he wants the partner to be liable
for his capital he has that."
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 said that he heard
Malik say about someone who consumes some food without the permission
of its owner, "He returns to the owner a like weight of the same kind
of food. Food is in the position of gold and silver. Gold and silver
are returned with gold and silver. The animal is not in the position
of gold in that. What distinguishes between them is the sunna and the
behaviour which is in force.
Yahya said that he heard Malik
say, "If a man is entrusted with some wealth and then trades with it
for himself and makes a profit, the profit is his because he is
responsible for the property until he returns it to its owner. "
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!
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 that he heard Malik say, "To
ransom them with their price is more equitable in this case, Allah
willing."
Malik said, "An example of this
is that a man dies leaving two sons, and 600 dinars. Each of them
takes 300 dinars. Then one of them testifies that his deceased father
confirmed that so-and-so was his son. The one who testifies is obliged
to give 100 dinars to the one thus connected. This is half of the
inheritance of the one thought to be related, had he been related. If
the other confirms him, he takes the other 100 and so he completes his
right and his relationship is established. His position is similar to
that of a woman who confirms a debt against her father or her husband
and the other heirs deny it. She must pay to the person whose debt she
confirms, the amount according to her share of the full debt, had it
been confirmed against all the heirs. If the woman inherits an eighth,
she pays the creditor an eighth of his debt. If a daughter inherits a
half, she pays the creditor half of his debt. Whichever women confirm
him, pay him according to this.
Malik said, "If a man's
testimony is in agreement with what the woman testified to, that so-
and-so had a debt against his father, the creditor is made to take an
oath with one witness and he is given all his due. This is not the
position with women because a man's testimony is allowed and the
creditor must take an oath with the testimony of his witness, and take
all his due. If he does not take an oath, he only takes from the
inheritance of the one who confirmed him according to his share of the
debt, because he confirmed his right and the other heirs denied it. It
is permitted for him to confirm it."
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."
Malik explained, "The unjust root is
whatever is taken, or planted without right."
Malik said, "That is what is done in our
community."
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.
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."
Yahya said that he heard Malik speak about a camel
who attacked a man and he feared for himself and killed it or
hamstrung it. He said, "If he has a clear proof that it was heading
for him and had attacked him, there are no damages against him. If
there is no clear proof except his word, he is responsible for the
camel."
Yahya said, "I heard Malik speak about a dyer who was given a garment
and he made a mistake and gave it to another man and the one to whom
he gave it wore it. He said, 'The one who wore it has no damages
against him, and the washer pays damages to the owner of the garment.
That is when the man wears the garment which was given him without
recognizing that it is not his. If he wears it knowing that it is not
his garment, he is responsible for it.' "
Malik said, "This is the way of doing
things about which there is no dispute in our community."
Malik said, "If a man has his debt to somebody taken on for him by
another man and then the man who took it on dies or goes bankrupt,
then whatever was taken on by him returns to the first debtor."
"If
a man buys a garment which has a defect of a burn or flaw, and the one
who sold it to him claims that he did not know about it, and the buyer
has cut the garment or dyed it, then the buyer has an option . If he
wishes, he can have a reduction according to what the burn or flaw
detracts from the price of the garment and he can keep the garment, or
if he wishes to pay damages for what the cutting or dyeing has
decreased of the price of the garment and return it, he can do so.
"If the buyer has dyed the garment with a dye which increases
the value, the buyer has an option. If he wishes, he has a reduction
from the price of the garment according to what the defect diminishes
or if he wishes to become a partner with the one who sold the garment
he does so. The price of the garment with a burn or flaw is looked at.
If the price is ten dirhams, and the amount by which the dyeing
increased the value is five dirhams, then they are partners in the
garment, each according to his share. In this reckoning is the amount
by which the dyeing increases the price of the garment."
He said, "If the giver wants to
keep the gift after he has had it witnessed, he cannot. If the
recipient claims it from him, he takes it."
Malik said, "If
some one gives a gift and then withdraws it and the recipient brings a
witness to testify for him that he was given the gift, be it goods,
gold, silver or animals, the recipient is made to take an oath. If he
refuses, the giver is made to take an oath. If he also refuses to take
an oath, he gives to the recipient what he claims from him if he has
at least one witness. If he does not have a witness, he has nothing .
"
Malik said, "If someone gives a gift not expecting anything
in return and then the recipient dies, the heirs are in his place. If
the giver dies before the recipient has received his gift, the
recipient has nothing. That is because he was given a gift which he
did not take possession of. If the giver wants to keep it, and he has
called witnesses to the gift, he cannot do that. If the recipient
claims his right he takes 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."
Yahya said that he heard Malik say, "The generally
agreed-on way of doing things in our community in the case of someone
who gives his son a gift or grants him a gift which is not sadaqa is
that he can take it back as long as the child does not start a debt,
which people claim from him, and which they trust him for on the
strength of the gift his father has given him. The father cannot take
back anything from the gift after debts are started against it.
"If a man gives his son or daughter something and a woman marries
the man, and she only marries him for the wealth and the property
which his father has given him and so the father wants to take that
back, or, if a man marries a woman whose father has given her a gift
and he marries her with an increased bride-price because of the wealth
and property that her father has given, then the father says, 'I will
take that back,' then the father cannot take back any of that from the
son or daughter if it is as I have described to you."
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.' "
'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."