Yahya related to me that Malik said, "What is done in
our community in the case of a man who makes his
slave-girl a mudabbara and she gives birth to children
after that, and then the slave-girl dies before the one
who gave her a tadbir is that her children are in her
position. The conditions which were confirmed for her are
confirmed for them. The death of their mother does not
harm them. If the one who made her mudabbara dies, they
are free if their value is less than one third of his
total property."
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 spoke about a mudabbar who said to his master,
"Free me immediately and I will give fifty dinars which I
will have to pay in instalments." His master said, "Yes.
You are free and you must pay fifty dinars, and you will
pay me ten dinars every year." The slave was satisfied
with this. Then the master dies one, two or three days
after that. He said, "The freeing is confirmed and the
fifty dinars become a debt against him. His testimony is
permitted, his inviolability as a free man is confirmed,
as are his inheritance and his liability to the full hudud
punishments. The death of his master, however, does not
reduce the debt for him at all."
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.
Malik said, "The generally agreed-on way of doing
things in our community is that any setting-free which a
man makes in a bequest that he wills in health or illness
can be rescinded by him when he likes and changed when he
likes as long as it is not a tadbir. There is no way to
rescind a tadbir once he has made it.
"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 .
"
Section: A Master's Intercourse with His Slave-girl when
he has Made her Mudabbara
Malik related to me from Nafi that Abdullah ibn Umar
made two of his slave-girls mudabbara, and he had
intercourse with them while they were mudabbara.
Malik related to me from Yahya ibn Said that Said ibn
al-Musayyab used to say, "When a man makes his slave-girl
mudabbara, he can have intercourse with her. He cannot
sell her or give her away and her children are in the same
position as her."
Malik said, "The generally agreed on way of doing
things in our community about a mudabbar is that the owner
cannot sell him or change the position in which he has put
him. If a debt overtakes the master, his creditors cannot
sell the mudabbar as long as the master is alive. If the
master dies and has no debts, the mudabbar is included in
the third (of the bequest) because he expected his work
from him as long as he lived. He cannot serve him all his
life, and then he frees him from his heirs out of the main
portion of his property when he dies. If the master of the
mudabbar dies and has no property other than him, one
third of him is freed, and two thirds of him belong to the
heirs. If the master of the mudabbar dies and owes a debt
which encompasses the mudabbar, he is sold to meet the
debt because he can only be freed in the third (which is
allowed for bequest) ."
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 related to me that he heard that Umar ibn Abd al-Aziz
gave a judgement about the mudabbar who did an injury. He
said, "The master must surrender what he owns of him to
the injured person. He is made to serve the injured person
and recompense (in the form of service) is taken from him
as the blood-money of the injury. If he completes that
before his master dies, he reverts to his master."
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."
Malik said in the case of an umm walad who injured
someone, "The blood-money of that injury is the
responsibility of her master from his property, unless the
blood-money of the injury is greater than the value of the
umm walad. Her master does not have to pay more than her
value. That is because when the master of a slave or
slave-girl surrenders his slave or slave-girl for an
injury which one of them has done, he does not owe any
more than that, even if the blood-money is greater. As the
master of the umm walad cannot surrender her because of
the precedent of the sunna, when he pays her price, it is
as if he had surrendered her. He does not have to pay more
than that. This is the best of what I have heard about the
matter. The master is not obliged to assume responsibility
for more than an umm walad's value because of her criminal
action."