Judgement on the Mudabbar
1 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 and pledged or
she is an umm walad, any children she has 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 has
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. It is as if one
were selling 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 gave
birth, "The children of either of them by a slave-girl are in the same position
as himself. They are set free when he is set free and they are slaves while 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."
40.2 General Section on Tadbir
2 Malik, speaking about a mudabbar who says to his master, "Free me
immediately and I will give you fifty dinars which I will have to pay in
instalments." His master says, "Yes, you are free and you must pay me fifty
dinars and you will pay me ten dinars every year." The slave is satisfied with
this. Then the master dies one, two or three days later, 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 on hand and some absent property, and in the property on 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
the 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.
40.3 Bequests Involving Tadbir
3 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 whom he wills be set free but
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 such a condition, that right is hers. If he
wishes to do so before the fulfilment of the condition, he can sell her and her
child because he has not included her child in any condition he has made for
her.
"The bequest of setting free is different from 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
whatever 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
are covered are free.) If he makes them all mudabbar in his terminal
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 the same 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 possessed 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."
40.4 A Master's Intercourse with His Muddabara
4 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.
5 Malik related to me from Yahya ibn Sa'id that Sa'id ibn al-Musayyab used to
say, "When a man makes his slave-girl mudabbara he can have intercourse
with her. He cannot, however, sell her or give her away and her children are in
the same position as her."
40.5 Selling Mudabbars
6 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 still alive. If the master
dies and has no debts, the mudabbar is included in the third (of the
bequest) because the master expected his work from him as long as he lived. He
cannot serve the master all of his life, and then have the master free 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 the bequests)."
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 someone gives the master of a
mudabbar money to free him. That is also permittted 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 owing a debt,
his debt is paid from the price of the slave unless he has in his estate enough
to cover the debt. Then the mudabbar is set free."
40.6 Injuries Caused by Mudabbars
7 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 injury 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 their 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
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 of the slave after that. His third would be set
free, and two-thirds of him would belong to the heirs. That is because the
criminal action of the slave is more pressing than the debt of his master, and
so, 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 the skull open, 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 unpaid since
it is a bequest. That is because Allah, the Blessed, the Exalted, says,
'After any bequest made or any debts.' (4:11)."
Malik continued, "If there is enough in the third of the 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. The heirs said,
"We offered to surrender the mudabbar to the injured party." whilst the
creditor said, "My debt exceeds that." Malik said that if the creditor's debt
did not 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 stand security for 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 the blood-money from it and uses the mudabbar for
what remains of the blood-money."
40.7 Injuries Caused by an Umm Walad
8 Malik said in the case of an umm walad who injured someone, "The
blood-money of the 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, it is as if he had surrendered
her when he pays her price. 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."
Important note to learn and read quran online
The true knowledge of Islam is in reading quran online and bring the true succeed in to our daily life we should learn holy quran online as much as we could and not just in Arabic but try to understand the meaning of it so when ever we listen to quran online we can understand the Koran and learn how to read quran online it gives us the guidance to bring the purity in to our life with the true way and also spread the word of Islam and its knowledge to all over the world find holy quran reciter and more Islamic articles in this quran blog and feel free to spread it further as much as you could
No comments:
Post a Comment