Muwatta Malik: Chapter 38

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.

Malik said, "The generally agreed-on way of doing things among us in the case of slave whose master makes a bequest to free part of him - a third, a fourth, a half, or any share after his death, is that only the portion of him is freed that his master has named. This is because the freeing of that portion is only obliged to take place after the death of the master because the master has the option to withdraw the bequest as long as he lives. When the slave is freed from his master, the master is a testator and the testator only has access to free what he can take from his property, being the third of the property he is allowed to bequeath, and the rest of the slave is not free because the man's property has gone out of his hands. How can the rest of the slave which belongs to other people be free when they did not initiate the setting free and did not confirm it and they do not have the wala' established for them? Only the deceased could do that. He was the one who freed him and the one for whom the wala' was confirmed. That is not to be borne by another's property unless he bequeaths within the third of his property what remains of a lave to be freed. That is a request against his partners and inheritors and the partners must not refuse the slave that when it is within the third of the dead man's property because there is no harm in that to the inheritors." Malik said, "If a man frees a third of his slave while he is critically ill, he must complete the emancipation so all of him is free from him, if it is within the third of his property that he has access to, because he is not treated in the same way as a man who frees a third of a slave after his death, because had the one who freed a third of his slave after his death lived, he could have cancelled it and the slave's being set free would be of no effect. The master who made the freeing of the third of the slave irrevocable in his illness, would still have to free all of him if he lived. If he died, the slave would be set free within the third of the bequest. That is because the command of the deceased is permissible in his third as the command of the healthy is permissible in all his property."

Malik said, "A master who frees a slave of his and settles his
emancipation so that his testimony is permitted, his inviolability
complete, and his right to inherit confirmed, cannot impose
stipulations on him like what he imposes on a slave about property or
service, nor get him to do anything of slavery, because 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 give his partners
their shares so the slave is completely free."

Malik
commented, "If he owns the slave completely, it is more proper to free
him completely and not mingle any slavery with it."

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."

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.' "

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."

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."

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." "'

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."

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."

Malik related to me from Nafi that Abdullah ibn Umar freed an
illegitimate child and its mother.

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."

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."

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 said that it was not permissible for a slave to buy himself from his master on the provision that he could give the wala' to whomever he wished as the wala' was for the one who set him free, and that had a man given permission to his mawla to give the wala' to whomever he wished, that would not have been permitted, because the Messenger of Allah, may Allah bless him and grant him peace, had said, "The wala' is for the one who sets free. " The Messenger of Allah, may Allah bless him and grant him peace, forbade selling or giving away the wala'. For if it was permitted to the master to stipulate that for him and to give him permission to give the wala' to whomever he liked, that would be a gift.

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.