Malik related to me from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant
him peace, said, "It is the duty of a muslim man who has
something to be given as a bequest not to spend two nights
without writing a will about it."
Malik said, "The generally agreed-on way of doing
things in our community is that when the testator writes
something in health or illness as a bequest, and it has
freeing slaves or things other than that in it, he can
alter it in any way he chooses, until he is on his
deathbed. If he prefers to abandon a bequest or change it,
he can do so unless he has made a slave mudabbar (to be
freed after his death). If he has made him mudabbar, there
is no way to change what he has made mudabbar. He is
allowed to change his testament because the Messenger of
Allah, may Allah bless him and grant him peace, said, "It
is the duty of a muslim man who has something to be given
as a bequest not to spend two nights without writing a
will about it."
Malik explained, "Had the testator not been able to
change his will nor what was mentioned in it about freeing
slaves, each testator might withhold making bequests from
his property, whether in freeing slaves or other than it.
A man gives a bequest in his health and in his travelling."
(i.e. he does not wait till his death bed ) .
Malik summed up, "The way of doing things in our
community about which there is no dispute is that he can
change whatever he likes of that except for the mudabbar."
Section: Permissibility of the Bequest of the Child, the
Simpleton, the Lunatic and the Idiot
Malik related to me from Abdullah ibn Abi Bakr ibn Hazm
that Amr ibn Sulaym az-Zuraqi informed his father that it
had been said to Umar ibn al-Khattab, "There is here an
adolescent boy who has not yet reached puberty. He is from
the Ghassan tribe and his heir is in ash-Sham. He has
property. Here he only has the daughter of one of his
paternal uncles." Umar ibn al-Khattab instructed, "Let him
leave her a bequest." He willed her a property called the
well of Jusham.
Malik added, "That property was sold for 30,000 dirhams,
and the daughter of the paternal uncle to whom he willed
it was the mother of Amr ibn Sulaym az-Zuraqi."
Malik related to me from Yahya ibn Said from Abu Bakr
ibn Hazm that a boy from Ghassan was dying in Madina while
his heir was in Syria. That was mentioned to Umar ibn al-Khattab.
It was said to him, "So-and-so is dying. Shall he make a
bequest?" He said, "Let him make a bequest."
Yahya ibn Said said that Abu Bakr had said, "He was a
boy of ten or twelve years." Yahya said, "He willed the
well of Jusham, and his people sold it for 30,000 dirhams."
Yahya said that he heard Malik say, "The generally
agreed-on way of doing things in our community is that a
simpleton, an idiot, or a lunatic who recovers at times,
can make wills if they have enough of their wits about
them to recognise what they will. Someone who has not
enough wits to recognise what he wills, and is overcome in
his intellect, cannot make a bequest."
Section: Limiting the Bequest to One-Third of the Estate
Malik related to me from Ibn Shihab from Amir ibn Sad
ibn Abi Waqqas that his father said, "The Messenger of
Allah, may Allah bless him and grant him peace, came to me
to treat me for a pain which became hard to bear in the
year of the farewell hajj. I said, 'Messenger of Allah,
you can see how far the pain has reached me. I have
property and only my daughter inherits from me. Shall I
give two thirds of my property as sadaqa?' The Messenger
of Allah, may Allah bless him and grant him peace, said,
'No.' I said, 'Half?' He said, 'No.' Then the Messenger of
Allah, may Allah bless him and grant him peace, said, 'A
third, and a third is a lot. Leaving your heirs rich is
better than leaving them poor to beg from people. You
never spend anything on maintenance desiring the Face of
Allah by it, but that you are rewarded for it, even what
you appoint for your wife.' Sad said, 'Messenger of Allah,
will I be left here in Makka after my companions have
departed for Madina?' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'If you are left
behind, and do sound deeds you will increase your degree
and elevation by them. Perhaps you will be left behind so
that some people may benefit by you and others may be
harmed by you. O Allah! complete their hijra for my
companions, and do not turn them back on their heels. The
unfortunate one is Said ibn Khawla.' The Messenger of
Allah, may Allah bless him and grant him peace, was
distressed on his account for he had died at Makka."
Yahya said that he heard Malik speak about a man who
willed a third of his property to a man and said as well,
"My slave will serve so-and-so (another man) for as long
as he lives, then he is free," then that was looked into,
and the slave was found to be a third of the property of
the deceased. Malik said, "The service of the slave is
evaluated. Then the two of them divide it between them.
The one who was willed a third takes his third, as a
share, and the one who was willed the service of the slave
takes what was evaluated for him of the slave's service.
Each of them takes, from the service of the slave or from
his wage if he has a wage, according to his share. If the
one who was given the service of the slave for as long as
he lived dies, then the slave is freed."
Yahya said that he heard Malik speak about someone who
willed his third and said "So-and-so has such-and-such,
and so-and-so has such-and-such," naming some of his
property, and his heirs protested that it was more than a
third." Malik said, "The heirs then have an option between
giving the beneficiaries their full bequests and taking
the rest of the property of the deceased, or between
dividing among the beneficiaries the third of the property
of the deceased and surrendering to them their third. If
they wish, their rights in it reach as far as they reach."
Section: Dealing with the Property of the Pregnant
Woman, the Sick Person and Someone Present in Battle
Yahya said that he heard Malik say, "The best of what I
have heard about the testament of a pregnant woman and
about what settlements she is permitted in her property is
that the pregnant woman is like the sick person. When the
illness is light, and one does not fear for the sick
person, he does with his property what he likes. If the
illness is such that his life is feared for, he can only
dispose of a third of his estate."
He said, "It is the same with a woman who is pregnant.
The beginning of pregnancy is good news and joy. It is not
illness and no fear because Allah the Blessed, the
Exalted, said in His Book, 'We gave her good news of Ishaq
and after Ishaq, Yaqub.' (Sura ll ayat 71). And He said,
'She bore a light burden and passed by with it, but when
she became heavy, they called upon Allah, their Lord, "If
you give us a good-doing son, we will be among the
thankful." '(Sura 7 ayat 189).
"When a pregnant woman becomes heavy, she is only
permitted to dispose of a third of her estate. The
beginning of this restriction is after six months. Allah,
the Blessed, the Exalted, said in His Book, 'Mothers
suckle their children for two complete years.' And He
said, 'his bearing and weaning are thirty months.' (Sura 2
"When six months have passed for the pregnant woman
from the day she conceived, she is only permitted to
dispose of a third of her property."
Yahya said that he heard Malik say, "A man who is
advancing in the row for battle, can only dispose of a
third of his property. He is in the same position as a
pregnant woman or an ill person who is feared for, as long
as he is in that situation."
Section: Bequests to Heirs and Right of Possession
Yahya said that he heard Malik say, "This ayat is
abrogated. It is the word of Allah, the Blessed, the
Exalted, 'If he leaves goods, the testament is for parents
and kinsmen.' What came down about the division of the
fixed shares of inheritance in the Book of Allah, the
Mighty, the Exalted, abrogated it."
Yahya said that he heard Malik say, "The established
sunna with us, in which there is no dispute, is that it is
not permitted for a testator to make a bequest (in
addition to the fixed share) in favour of an heir, unless
the other heirs permit him. If some of them permit him and
others refuse, he is allowed to diminish the share of
those who have given their permission. Those who refuse
take their full share from the inheritance.
Yahya said that he heard Malik speak about an invalid
who made a bequest and asked his heirs to give him
permission to make a bequest when he was so ill that he
only had command of a third of his property, and they gave
him permission to leave some of his heirs more than his
third. Malik said, "They cannot revoke that. Had they been
permitted to do so, every heir would have done that, and
then, when the testator died, they would take that for
themselves and prevent him from bequeathing his third and
what was permitted to him with respect to his property."
Malik said, "If he asks permission of his heirs to
grant a bequest to an heir while he is well and they give
him permission, that is not binding on them. The heirs can
rescind that if they wish. That is because when a man is
well, he is entitled to all his property and can do what
he wishes with it. If he wishes, he can spend all of it.
He can spend it and give sadaqa with it or give it to
whomever he likes. His asking permission of his heirs is
permitted for the heirs, when they give him permission
when authority over all his property is closed off from
him and nothing outside of the third is permitted to him,
and when they are more entitled to the two-thirds of his
property than he is himself. That is when their permission
becomes relevant. If he asks one of the heirs to give his
inheritance to him when he is dying, and the heir agrees
and then the dying man does not dispose of it at all, it
is returned to the one who gave it unless the deceased
said to him, 'So-and-so - (one of his heirs) - is weak,
and I would like you to give him your inheritance.' So he
gives it to him. That is permitted when the deceased
specified it for him."
Malik said, "When a man gives the dying man free use of
his share of the inheritance, and the dying man
distributes some of it and some remains, it is returned to
the giver, after the man has died."
Yahya said that he heard Malik speak about someone who
made a bequest and mentioned that he had given one of his
heirs something which he had not taken possession of, so
the heirs refused to permit that. Malik said, "That gift
returns to the heirs as inheritance according to the Book
of Allah because the deceased did not mean that to be
taken out of the third and the heirs do not have a portion
in the third (which the dying man is allowed to
Malik said from Hisham ibn Urwa from his father that an
effeminate man was with Umm Salama, the wife of the
Prophet, may Allah bless him and grant him peace. He said
to Abdullah ibn Abi Umayya while the Messenger of Allah,
may Allah bless him and grant him peace, was listening.
"Abdullah! If Allah grants you victory over Ta'if
tomorrow, I will lead you to the daughter of Ghailan. She
has four folds on her front and eight folds on her back."
The Messenger of Allah, may Allah bless him and grant him
peace, said, "This sort of man should not enter freely
with you." (It was customary to allow men with no sexual
inclination to enter freely where there were women).
Malik related to me that Yahya ibn Said said that he
heard al-Qasim ibn Muhammad say, "A woman of the Ansar was
married to Umar ibn al-Khattab. She bore Asim ibn Umar to
him, and then he separated from her. Umar came to Quba and
found his son Asim playing in the courtyard of the mosque.
He took him by the arm and placed him before him on his
mount. The grandmother of the child saw him and argued
with Umar about the child so they went to Abu Bakr as-Siddiq.
Umar said, 'My son.' The woman said, 'My son.' Abu Bakr
said, 'Do not interfere between a child and its mother.'
Umar did not repeat his words."
Yahya said that he heard Malik say, "This is what I
would have done in that situation."
Yahya said that he heard Malik speak about a man who
bought goods - animals or clothes or wares, and the sale
was found not to be permitted so it was revoked and the
one who had taken the goods was ordered to return the
owner his goods. Malik said, "The owner of the goods only
has their value on the day they were taken from him, and
not on the day they are returned to him. That is because
the man is liable for them from the day he took them and
whatever loss is in them after that is against him. For
that reason, their increase and growth are also his. A man
may take the goods at a time when they are selling well
and are in demand, and then have to return them at a time
when they have fallen in price and no one wants them. For
instance, the man may take the goods from the other man,
and sell them for ten dinars or keep them while their
price is that. Then he may have to return them while their
price is only a dinar. He should not go off with nine
dinars from the man's property. Or perhaps they are taken
by the man, and he sells them for a dinar or keeps them,
while their price is only a dinar, then he has to return
them, and their value on the day he returns them is ten
dinars. The one who took them does not have to pay nine
dinars from his property to the owner. He is only obliged
to pay the value of what he took possession of on the day
it was taken ."
He said, "Part of what clarifies this is that when a
thief steals goods, only their price on the day he stole
them is looked at. If cutting off the hand is necessary
because of it, that is done. If the cutting off is
delayed, either because the thief is imprisoned until his
situation is examined or he flees and then is caught, the
delay of the cutting off of the hand does not make the
hadd, which was obliged for him on the day he stole, fall
from him even if those goods become cheap after that. Nor
does delay oblige cutting off the hand if it was not
obliged on the day he took those goods, even if they
become expensive after that."
Section: General Chapter on Making Judgement and Shying
Away From It
Malik related to me from Yahya ibn Said that
Abu'd-Darda wrote to Salman al-Farsi, "Come immediately to
the holy land." Salman wrote back to him, "Land does not
make anyone holy. Man's deeds make him holy. I have heard
that you were put up as a doctor to treat and cure people.
If you are innocent, then may you have delight! If you are
a quack, then beware lest you kill a man and enter the
Fire!" When Abu'd-Darda judged between two men, and they
turned from him to go, he would look at them and say,
"Come back to me, and tell me your story again. A quack!
Yahya said that he heard Malik say, "If someone makes
use of a slave, without permission of its master, in
anything important to him, whose like has a fee, he is
liable for what befalls the slave if anything befalls him.
If the slave is safe and his master asks for his wage for
what he has done, that is the master's right. This is what
is done in our community."
Yahya said that he heard Malik say about a slave who is
part free and part enslaved, "His property is suspended in
his hand and he cannot begin anything with it. He eats
from it and clothes himself in an approved fashion. If he
dies, his property belongs to the one to whom he is in
Yahya said that he heard Malik say, "The way of doing
things in our community is that a parent can take his
child to account for what he spends on him from the day
the child has property, cash or goods, if the parent wants
Malik related to me from Umar ibn Abd ar-Rahman ibn
Dalaf al-Muzani from his father that a man from the
Juhayna tribe used to buy camels before people set out for
hajj and sell them at a higher price. Then he travelled
quickly and used to arrive in Makka before the others who
set out for hajj. He went bankrupt and his situation was
put before Umar ibn al-Khattab, who said, "O People! al-Usayfi,
al-Usayfi of the Juhayna, was satisfied with his deen and
his trust because it was said of him that he arrived
before the others on hajj. He used to incur debts which he
was not careful to repay, so all of his property has been
eaten up by it. Whoever has a debt against him, let him
come to us tomorrow and we will divide his property
between his creditors. Beware of debts! Their beginning is
a worry and their end is destitution. "
Section: About Damages and Injuries Caused by Slaves
Yahya said that he heard Malik say, "The sunna with us
about the crime of slaves is that the hand is not cut off
for any harm that a slave causes a man, or something he
pilfers, or something guarded which he steals, or hanging
dates he cuts down or ruins, or steals. That is against
the slave's person and does not exceed the price of the
slave whether it is little or much. If his master wishes
to give the value of what the slave took or ruined, or pay
the blood-price for the injury, he pays it and keeps his
slave. If he wishes to surrender him, he surrenders him,
and none of that is against him. The master has the option
Malik related to me from Ibn Shihab from Said ibn al-Musayyab
that Uthman ibn Affan said, "If someone gives something to
his small child who is not old enough to look after it
himself, and in order that his gift might be permitted he
makes the gift public and has it witnessed, the gift is
permitted, even if the father keeps charge of it."
Malik said, "What is done in our community is that if a
man gives his small child some gold or silver and then
dies and he has it in his own keeping, the child has none
of it unless the father set it aside in coin or placed it
with a man to keep for the son. If he does that, it is
permitted for the son."