Malik said, "For
every mother by birth as opposed to mother by suckling, her children
are in her position. If she is free and she gives birth after she is
free, her children are free. If she is a mudabbara or mukataba, or
freed after a number of years in service, or part of her is free or
pledged or she is an umm walad, each of her children are in the same
position as their mother. They are set free when she is set free and
they are slaves when she is a slave."
Malik said about the
mudabbara given a tadbir while she was pregnant, "Her children are in
her position. That is also the position of a man who frees his slave-
girl while she is pregnant and does not know that she is pregnant."
Malik said, "The sunna about such women is that their
children follow them and are set free by their being set free."
Malik said, "It is the same as if a man had bought a slave-girl
while she was pregnant. The slave-girl and what is in her womb belong
to the one who bought her whether or not the buyer stipulates that."
Malik continued, "It is not halal for the seller to make an
exception about what is in her womb because that is an uncertain
transaction. It reduces her price and he does not know if that will
reach him or not. That is as if one sold the foetus in the womb of the
mother. That is not halal because it is an uncertain transaction ."
Malik said about the mukatab or mudabbar who bought a slave-
girl and had intercourse with her and she became pregnant by him and
gives birth, "The children of both of them by a slave-girl are in his
position. They are set free when he is set free and they are slaves
when he is a slave."
Malik said, "When he is set free, the
umm walad is part of his property which is surrendered to him when he
is set free."
Malik said
that if a man who made his slave a mudabbar died and he had some
property at hand and some absent property, and in the property at hand
there was not enough (in the third he was allowed to bequeath) to
cover the value of the mudabbar, the mudabbar was kept there together
with this property, and his tax (kharaj) was gathered until the
master's absent property was clear. Then if a third of what his master
left would cover his value, he was freed with his property and what
had gathered of his tax. If there was not enough to cover his value in
what his master had left, as much of him was freed as the third would
allow, and his property was left in his hands.
"As for every
child born to him by a slave-girl who he wills to be set free but he
does not make mudabbara, her children are not freed with her when she
is freed. That is because her master can change his will when he likes
and rescind it when he likes, and being set free is not confirmed for
her. She is in the position of a slave-girl whose master says, 'If so-
and-so remains with me until I die, she is free.' " (i.e. he does not
make a definite contract.)
Malik said, "If she fulfils that,
that is hers. If he wishes, before that, he can sell her and her child
because he has not entered her child into any condition he has made
for her.
"The bequest in setting free is different from the
tadbir. The precedent of the sunna makes a distinction between them.
Had a bequest been in the position of a tadbir, no testator would be
able to change his will and what he mentioned in it of setting free.
His property would be tied up and he would not be able to use it."
Malik said about a man who made all his slaves mudabbar while
he was well and they were his only property, "If he made some of them
mudabbar before the others, one begins with the first until the third
of his property is reached. (i.e. their value is matched against the
third, and those whose value is covered are free.) If he makes the
mall mudabbar in his illness, and says in one statement, 'So-and-so is
free. So-and-so is free. So-and-so is free if my death occurs in this
illness,' or he makes them all mudabbar in one statement, they are
matched against the third and one does not begin with any of them
before the others. It is a bequest and they have a third of his
property divided between them in shares. Then the third of his
property frees each of them according to the extent of his share.
"No single one of them is given preference when that all occurs in
his illness."
Malik spoke about a master who made his slave a
mudabbar and then he died and the only property he had was the
mudabbar slave and the slave had property. He said, "A third of the
mudabbar is freed and his property remains in his possession."
Malik said about a mudabbar whose master gave him a kitaba and
then the master died and did not leave any property other than him, "A
third of him is freed and a third of his kitaba is reduced, and he
owes two-thirds."
Malik spoke about a man who freed half of
his slave while he was ill and made irrevocable his freeing half of
him or all of him, and he had made another slave of his mudabbar
before that. He said, "One begins with the slave he made mudabbar
before the one he freed while he was ill. That is because the man
cannot revoke what he has made mudabbar and cannot follow it with a
matter which will rescind it. When this mudabbar is freed, then what
remains of the third goes to the one who had half of him freed so as
to complete his setting-free entirely in the third of the property of
the deceased. If what is left of the third does not cover that,
whatever is covered by what is left of the third is freed after the
first mudabbar is freed . "
He said, "If
the debt only includes half of the slave, half of him is sold for the
debt. Then a third of what remains after the debt is freed. "
Malik said, "It is not permitted to sell a mudabbar and it is not
permitted for anyone to buy him unless the mudabbar buys himself from
his master. He is permitted to do that. Or else some one gives the
master of the mudabbar money and his master who made him a mudabbar
frees him. That is also permitted for him."
Malik said, "His
wala' belongs to his master who made him a mudabbar."
Malik
said, "It is not permitted to sell the service of a mudabbar because
it is an uncertain transaction since one does not know how long his
master will live. That is uncertain and it is not good."
Malik spoke about a slave who was shared between two men, and one of
them made his portion mudabbar. He said, "They estimate his value
between them. If the one who made him mudabbar buys him, he is all
mudabbar. If he does not buy him, his tadbir is revoked unless the one
who retains ownership of him wishes to give his partner who made him
mudabbar his value. If he gives him to him for his value, that is
binding, and he is all mudabbar."
Malik spoke about the
christian man who made a christian slave of his mudabbar and then the
slave became muslim. He said, "One separates the master and the slave,
and the slave is removed from his christian master and is not sold
until his situation becomes clear. If the christian dies and has a
debt, his debt is paid from the price of the slave unless he has in
his estate what will pay the debt. Then the mudabbar is set free."
Malik
said, "The generally agreed on way of doing things in our community
about a mudabbar who does an injury and then his master dies and the
master has no property except him is that the third (allowed to be
bequeathed) is freed, and then the blood-money for the in jury is
divided into thirds. A third of the blood-money is against the third
of him which was set free, and two-thirds are against the two-thirds
which the heirs have. If they wish, they surrender what they have of
him to the party with the injury, and if they wish, they give the
injured person two-thirds of the blood-money and keep their portion of
the slave. That is because that injury is a criminal action by the
slave and it is not a debt against the master by which whatever
setting free and tadbir the master had done would be abrogated. If
there were a debt to people held against the master of the slave, as
well as the criminal action of the slave, part of the mudabbar would
be sold in proportion to the blood-money of the injury and according
to the debt. Then one would begin with the blood-money which was for
the criminal action of the slave and it would be paid from the price
of the slave. Then the debt of his master would be paid, and then one
would look at what remained after that of the slave. His third would b
be set free, and two-thirds of him would belong to the heirs. That is
because the criminal action of the slave is more important than the
debt of his master. That is because, if the man dies and leaves a
mudabbar slave whose value is one hundred and fifty dinars, and the
slave strikes a free man on the head with a blow that lays open the
skull, and the blood-money is fifty dinars, and the master of the
slave has a debt of fifty dinars, one begins with the fifty dinars
which are the blood-money of the head wound, and it is paid from the
price of the slave. Then the debt of the master is paid. Then one
looks at what remains of the slave, and a third of him is set free and
two-thirds of him remain for the heirs. The blood-money is more
pressing against his person than the debt of his master. The debt of
his master is more pressing than the tadbir which is a bequest from
the third of the property of the deceased. None of the tadbir is
permitted while the master of the mudabbar has a debt which is not
paid. It is a bequest. That is because Allah, the Blessed, the
Exalted, said, 'After any bequest that is made or any debt.' " (Sura 4
ayat 10)
Malik said, "If there is enough in the third
property that the deceased can bequeath to free all the mudabbar, he
is freed and the blood-money due from his criminal action is held as a
debt against him which follows him after he is set free even if that
blood-money is the full blood-money. It is not a debt on the master."
Malik spoke about a mudabbar who injured a man and his master
surrendered him to the injured party, and then the master died and had
a debt and did not leave any property other than the mudabbar, and the
heirs said, "We surrender the mudabbar to the party," whilst the
creditor said, "My debt exceeds that." Malik said that if the
creditor's debt did exceed that at all , he was more entitled to it
and it was taken from the one who owed the debt, according to what the
creditor was owed in excess of the blood-money of the injury. If his
debt did not exceed it at all, he did not take the slave.
Malik spoke about a mudabbar who did an injury and had property, and
his master refused to ransom him. He said, "The injured party takes
the property of the mudabbar for the blood-money of his injury. If
there is enough to pay it, the injured party is paid in full for the
blood-money of his injury and the mudabbar is returned to his master.
If there is not enough to pay it, he takes it from the blood-money and
uses the mudabbar for what remains of the blood-money."