Judgement on the Mukatab
1 Malik related to me from Nafi' that 'Abdullah ibn 'Umar said, "A mukatab
is a slave as long as any of his kitaba remains unpaid."
[In Abu Dawud and Ibn Majah]
2 Malik related to me that he had heard that 'Urwa ibn az-Zubayr and Sulayman
ibn Yasar said, "The mukatab is a slave as long as any of his kitaba
still remains to be paid."
Malik said, "This is my opinion as well."
Malik said, "If a mukatab dies and leaves more property than what
remains to be paid of his kitaba and he has children who were born during
the time of his kitaba or whose kitaba has been written as well,
they inherit any property that remains after the kitaba has been paid
off."
3 Malik related to me from Humayd ibn Qays al-Makki that a son of al-Mutawakkil
had a mukatab who died at Makka and left (enough to pay off) the rest of
his kitaba and he also owed some debts to people. He also left a
daughter. The governor of Makka was not certain about how to judge in the case
so he wrote to 'Abd al-Malik ibn Marwan to ask him about it. 'Abd al-Malik wrote
to him, "Begin with the debts owed to people and then pay off what remains of
his kitaba. Then divide what remains of the property between the daughter
and the master."
Malik said, "What is done among us is that the master of a slave does not
have to give his slave a kitaba if he asks for it. I have not heard of
any of the Imams forcing a man to give a kitaba to his slave. I have
heard that when someone asked about that and said that Allah the Blessed, the
Exalted said, 'Write a kitaba for them if you know of good in them'
(24:33), one of the people of knowledge recited these two ayats, 'When
you have come out of ihram, then hunt for game' (5:3) and 'Then when the
prayer is finished spread through the earth and seek Allah's bounty'
(62:10). "
Malik commented, "It is a way of doing things for which Allah the Mighty, the
Majestic, has given permission to people, and it is not obligatory for them."
Malik said, "I heard one of the people of knowledge say about the words of
Allah the Blessed, the Exalted, 'Give them some of the wealth Allah has given
you' (24:33), that it meant that a man give his slave a kitaba and
then reduce the end of his kitaba for him by some specific amount."
Malik said, "This is what I have heard from the people of knowledge and what
I have seen people doing here."
Malik said, "I have heard that 'Abdullah ibn 'Umar gave one of his slaves his
kitaba for 35,000 dirhams and then reduced the end of his kitaba by 5,000
dirhams."
Malik said, "What is done among us is that when a master gives a mukatab
his kitaba, the mukatab's property goes with him but his children
do not go with him unless he stipulates that in his kitaba."
Yahya said, "I heard Malik say that in the case of a mukatab who was
the owner of a slave-girl who was pregnant and neither he nor his master knew
that on the day he was given his kitaba, the child did not follow him
because he was not included in the kitaba. He belonged to the master. As
for the slave-girl, she belonged to the mukatab because she was his
property."
Malik said that if a man and his wife's son (by another husband) inherited a
mukatab from the wife and the mukatab died before he had completed
his kitaba, they divided his inheritance between them according to the
Book of Allah. If the slave paid off his kitaba and then died, the
inheritance went to the son of the woman and the husband had nothing of the
inheritance.
Malik said that if a mukatab gave his own slave a kitaba, the
situation was examined. If he wanted to do his slave a favour, and it was
obvious by his making it easy for him, it was not permitted. If, however, he was
giving him a kitaba from desire to find money to pay off his own kitaba, then he
was permitted to do so.
Malik said that if a man had intercourse with a mukataba of his and
she became pregnant by him, she had an option. If she liked she could be an
umm walad. If she wished she could confirm her kitaba. If she did not
conceive she still had her kitaba.
Malik said, "The generally agreed on way of doing things among us about a
slave who is owned by two men is that one of them does not give a kitaba
for his share, whether or not his companion gives him permission to do so,
unless they both write the kitaba together because that alone would
effect setting him free. If the slave were to fulfil what he had agreed on to
free half of himself and then the one who had given a kitaba for half of
him was not obliged to complete his setting free, that would be in opposition to
the words of the Messenger of Allah, may Allah bless him and grant him peace,
'If someone frees his share in a slave and has enough money to cover the full
price of the slave, justly evaluated for him, he must pay his partners their
shares so that the slave is completely free."
Malik said, "If he is not aware of that until the mukatab has met the
terms or before he has met them, the owner who has written the kitaba for
him returns what he has taken from the mukatab to him, and then he and
his partner divide him according to their original shares and the kitaba
is invalid. He is the slave of both of them in his original state."
Malik spoke about a mukatab who was owned by two men and one of them
granted him a delay in the payment of the right which he was owed. His partner
refused to defer payment and exacted his part of the due. Malik said that if the
mukatab then died and left property which did not complete the kitaba,
"They divide it according to what they are still owed by him. Each of them takes
according to his share. If the mukatab leaves more than his kitaba,
each of them takes what remains to them of the kitaba and what remains
after that is divided equally between them. If the mukatab is unable to
pay his kitaba fully and the one who did not allow him to defer his
payment has exacted more than his associate did, the slave is still equally
between them, and he does not return to his associates the excess of what he has
exacted because he only exacted his right with the permission of his associate.
If one of them remits what is owed to him and then the mukatab is unable
to pay, he belongs to both of them, and the one who has exacted something does
not return anything because he only demanded what he was owed. That is like the
debt of two men in one writing against the same man. One of them grants him time
to pay and the other is greedy and exacts his due. Then the debtor goes
bankrupt. The one who exacted his due does not have to return any of what he
took."
39.2 Assuming Responsibility in Kitaba
4 Malik said, "The generally agreed on way of doing things among us is that
when a group of slaves write their kitaba together in the same kitaba
agreement, and some are responsible for others, and they are not reduced
anything by the death of one of the responsible ones, and then one of them says,
'I cannot do it,' and gives up, his companions can use him in whatever work he
can do and they help each other with that in their kitaba until they are
freed if they are freed, or remain slaves if they remain slaves."
Malik said, "The generally agreed on way of doing things among us is that
when a master gives a slave his kitaba, it is not permitted for the
master to let anyone assume the responsibility for the kitaba of his
slave if the slave dies or is incapable. This is not part of the sunna of
the Muslims. That is because when a man assumes responsibility to the master of
a mukatab for what is owed of the kitaba and then the master of
the mukatab pursues that from the one who has assumed that
responsibility, he takes his money falsely. It is not as if he is buying the
mukatab, so that what he gives is part of the price of something that is
his, and neither is the mukatab being freed so that the price established
for him buys his inviolability as a free man. If the mukatab is unable to
meet the payments he reverts to his master and is his slave. This is because
kitaba is not a fixed debt which can be guaranted by the master of the
mukatab. It is something which, when it is paid by the mukatab, sets him
free. If the mukatab dies and has a debt, his master is not one of the
creditors for what remains unpaid of the kitaba. The creditors have
precedence over the master. If the mukatab cannot meet the payments and
he owes debts to people, he reverts to being a slave owned by his master and the
debts to people are the liability of the mukatab. The creditors do not
enter with the master into any share of the price of his person."
Malik said, "When people are written together in the same kitaba
agreement and there is no kinship between them by which they inherit from each
other, and some of them are responsible for others, then none of them are set
free before the others until all the kitaba has been paid. If one of them
dies and leaves property and it is more than all of what is against them, it
pays all that is against them. The excess of the property goes to the master,
and none of those who have been written in the kitaba with the deceased
have any of the excess. The master's claims are overshadowed by their claims for
the portions which remain against them of the kitaba which can be
fulfilled from the property of the deceased because the deceased had assumed
their responsibility and so they must use his property to pay for their freedom.
If the deceased mukatab has a free child not born in kitaba, and
who was not written in the kitaba, it does not inherit from him because
the mukatab was not set free until he died."
39.3 Severance in the Kitaba for an Agreed Price
5 Malik related to me that he heard that Umm Salama, the wife of the Prophet,
may Allah bless him and grant him peace, made a settlement with her mukatab
for an agreed amount of gold and silver.
Malik said, "The generally agreed on way of doing things among us in the case
of a mukatab who is shared between two partners is that one of them
cannot make a settlement with him for an agreed price according to his portion
without the consent of his partner. That is because the slave and his property
are owned by both of them, and so one of them is not permitted to take any of
the property except with his partner's consent. If one of them settles with the
mukatab and his partner does not, and he takes the agreed price, and then
the mukatab dies while he has property or is unable to pay, the one who
made the settlement would not have anything of the mukatab's property and
he could not return what he settled for so that his right to the slave's person
would return to him. However, when someone settles with a mukatab with
the permission of his partner and then the mukatab is unable to pay, it
is preferable that the one who broke with him returns what he has taken from the
mukatab in severance and he can have back his portion of the mukatab.
This he can do. If the mukatab dies and leaves property, the partner who
has kept hold of the kitaba is paid in full the amount of the kitaba
which remains to him against the mukatab from the mukatab's
property. Then what remains of the property of the mukatab is between the
partner who made severance and his partner, according to their shares in the
mukatab. If one of the partners breaks off with him and the other keeps the
kitaba, and the mukatab is unable to pay, it is said to the
partner who settled with him, 'If you wish to give your partner half of what you
took so the slave is divided between you, then do so. If you refuse, then all of
the slave belongs to the one who held on to possession of the slave.' "
Malik spoke about a mukatab who was shared between two men and one of
them made a settlement with him with the permission of his partner. Then the one
who retained possession of the slave demanded the like of that for which his
partner had settled or more than that and the mukatab could not pay it.
He said, "The mukatab is shared between them because the man has only
demanded what is owed to him. If he demands less than what the one who settled
with him took and the mukatab cannot manage that, and the one who settled
with him prefers to return to his partner half of what he took so the slave is
divided in halves between them, he can do that. If he refuses then all of the
slave belongs to the one who did not settle with him. If the mukatab dies
and leaves property, and the one who settled with him prefers to return to his
companion half of what he has taken so that the inheritance is divided between
them, he can do so. If the one who has kept the kitaba takes the like of
what the one who has settled with him took, or more, the inheritance is between
them according to their shares in the slave because he is only taking his
right."
Malik spoke about a mukatab who was shared between two men and one of
them made a settlement with him for half of what was due to him with the
permission of his partner, and then the one who retained possession of the slave
was willing to take less than what his partner settled with him for but the
mukatab was unable to pay. He said, "If the one who made a settlement with
the slave prefers to return half of what he was assigned to his partner, the
slave is divided between them. If he refuses to return it, the one who retained
possession has the portion of the share for which his partner made a settlement
with the mukatab."
Malik said, "The explanation of that is that the slave is divided into two
halves between them. They write him a kitaba together and then one of
them makes a settlement with the mukatab for half his due with the
permission of his partner. That is a fourth of the entire slave. Then the
mukatab is unable to continue, so it is said to the one who settled with
him, 'If you wish, return to your partner half of what you were awarded and the
slave is divided equally between you.' If he refuses, the one who held to the
kitaba takes in full the fourth of his partner for which he made settlement
with the mukatab. He had half the slave, so that now gives him
three-fourths of the slave. The one who broke off has a fourth of the slave
because he refused to return the equivalent of the fourth share for which he
settled."
Malik spoke about a mukatab whose master made a settlement with him
and set him free and what remained of his severance was written against him as
debt, then the mukatab died owing debts to people. He said, "His master
does not share with the creditors because of what he is owed from the severance.
The creditors are dealt with first."
Malik said, "A mukatab cannot become free of his master whilst he owes
debts to people. He would be set free and find himself with nothing because the
people who are owed the titled to his property than his master. He is not
permitted to do that."
Malik said, "According to the way things are done among us, there is no harm
if a man gives a kitaba to his slave and settles with him for gold and
reduces what he is owed of the kitaba provided only that the gold is paid
immediately. Whoever disapproves of that does so because he puts it in the
category of a debt which a man has against another man for a set term and then
gives him a reduction and he pays immediately.* This is not like such a debt.
The mukatab's becoming free from his master is dependent on his giving
money to speed up the setting free. Inheritance, testimony and the hudud
are obliged for him and the inviolability of being set free established for him.
He is not buying dirhams for dirhams or gold for gold. Rather it is like a man
who having said to his slave, 'Bring me such-and-such an amount of dinars and
you are free,' then reduces that for him, saying, 'If you bring me less than
that, you are free.' That is not a fixed debt. If it had been a fixed debt, the
master would have been counted amongst the creditors of the mukatab when
he died or went bankrupt. His claim on the property of the mukatab would
be treated in the same way as theirs."
* This transaction is haram. See Book 31, section 39, hadith
82.
39.4 Injuries Caused by Mukatabs
6 Malik said, "The best of what I have heard about a mukatab who
injures a man so that blood-money must be paid is that if the mukatab can
pay the blood-money for the injury along with his kitaba he does so and
it is against his kitaba. If he cannot do that, and he cannot pay his
kitaba because he must pay the blood-money of the injury before the
kitaba, and he cannot pay the blood-money of the injury, then his master has
an option. If he prefers to pay the blood-money of the injury, he does so and
keeps his slave and he becomes an owned slave. If he wishes to surrender the
slave to the injured person, he surrenders him. The master does not have to do
more than surrender his slave."
Malik spoke about people who were in a general kitaba and one of them
caused an injury which entailed blood-money. He said, "If any of them does an
injury involving blood-money, he and those who are with him in the kitaba
are asked to pay all the blood-money of that injury. If they pay, they are
confirmed in their kitaba. If they do not pay and they are incapable of
doing so, then their master has an option. If he wishes, he can pay all the
blood-money of that injury and all the slaves revert to him. If he wishes, he
can surrender the one who alone did the injury and all the others revert to
being his slaves since they could not pay the blood-money of the injury which
their companion caused."
Malik said, "The way of doing things about which there is no dispute among us
is that when a mukatab is injured in some way which entails blood-money
or one of the mukatab's children who is written with him in the kitaba
is injured, their blood-money, is the blood-money of slaves of their value, and
what is appointed to them as their blood-money is paid to the master who has the
kitaba and he reckons that for the mukatab at the end of his
kitaba and there is a reduction for the blood-money that the master has
taken for the injury."
Malik said, "The explanation of that is, for example, that he has written his
kitaba for three thousand dirhams and the blood-money taken by the master
for his injury is one thousand dirhams. When the mukatab has paid his
master two thousand dirhams and the blood-money for his injury is one thousand
dirham he is free straightaway. If the blood-money of the injury is more than
what remains of the kitaba, the master of the mukatab takes what remains
of his kitaba and frees him. What remains after the payment of the
kitaba belongs to the mukatab. One must not pay the mukatab
any of the blood-money of his injury in case he might consume it and use it up.
If he could not pay his kitaba completely, he would then return to his
master one-eyed, with a hand cut off, or crippled in body. His master only wrote
his kitaba against his property and earnings, and he did not write his
kitaba so that he would take the blood-money for what happened to his child
or to himself and then use it up and consume it. One pays the blood-money of
injuries done to a mukatab and any children of his who are born in his
kitaba, or whose kitaba is written, to the master and he takes it
into account for him at the end of his kitaba."
39.5 Selling Mukatabs
7 Malik said, "The best of what is said about a man who buys the mukatab
of a man is that if the man wrote the slave's kitaba for dinars or
dirhams, he does not sell him unless it is for merchandise which is paid
immediately and not deferred, because if it is deferred, it would be a debt for
a debt. A debt for a debt is forbidden."
He said, "If the master has given a mukatab his kitaba in
exchange for certain merchandise in the form of camels, cattle, sheep or slaves,
it is more correct that a buyer buy him for gold, silver, or different goods
than the ones his master wrote the kitaba for and such a payment must be
paid immediately, not deferred."
Malik said, "The best of what I have heard about a mukatab when he is
sold is that he is more entitled to buy his kitaba than the one who buys
him, if he can pay his master the price for which he was sold in cash. That is
because his buying himself is his freedom, and freedom has priority over
whatever bequests accompany over whatever bequests accompany it. If one of those
who have written the kitaba for the mukatab sells his portion of
him so that a half, a third, a fourth or whatever share of the mukatab is
sold, the mukatab does not have the right of pre-emption in what is sold
of him. That is because it is like the severance of a partner, and he can only
cut off part of his kitaba with the permission of his partners because
what is sold of him does not give him complete rights as a free man and his
property is barred from him, and by buying part of himself, it is feared that he
will become incapable of completing payment because of what he has had to spend.
That is not like the mukatab buying himself completely unless whoever has
some of the kitaba remaining due to him gives him permission. If they
give him permission, he is more entitled to what is sold of him."
Malik said, "Selling one of the instalments of a mukatab is not
halal. This is because it is an uncertain transaction. If the mukatab
cannot pay it, what he owes is nullified. If he dies or goes bankrupt and he
owes debts to people, then the person who bought his instalment does not take
any of his portion with the creditors. The person who buys one of the
instalments of the mukatab is in the position of the master of the
mukatab. The master of the mukatab does not have a share with the
creditors of the mukatab for what he is owed of his slave's kitaba. It is
the same with the kharaj (a set amount deducted daily from the slave
against his earnings) which accumulates for a master from the earnings of his
slave. The creditors of the slave do not allow him a share for whatever
deductions have accumulated for him."
Malik said, "There is no harm in a mukatab paying towards his
kitaba with coin or merchandise other than the merchandise for which he
wrote the kitaba if it is identical with it, on time (for the instalment)
or delayed."
Malik said that if a mukatab died and left an umm walad and
small children by her or by someone else and they would not work and it was
feared that they would be unable to fulfil their kitaba, the umm
walad of the father was sold if her price would pay all the kitaba
for them, whether or not she was their mother. They were paid for and set free
because their father would not have forbidden her sale if he had feared that
they would be unable to complete their kitaba. If her price would not
cover the price for them and neither she nor they could work, they all reverted
to being slaves of the master.
Malik said, "What is done among us in the case of a person who buys the
kitaba of a mukatab, and then the mukatab dies before he has
paid his kitaba, is that the person who bought the kitaba inherits
from him. If, rather than dying, the mukatab cannot pay, the buyer has
his person. If the mukatab pays his kitaba to the person who
bought him and he is free, his wala' goes to the person who wrote the
kitaba and the person who bought his kitaba does not have any of it."
39.6 The Labour of Mukatabs
8 Malik related to me that he heard that 'Urwa ibn az-Zubayr, when asked
whether the sons of a man who had a kitaba written for himself and his
children and then died worked for the kitaba of their father or were
slaves, said, "They work for the kitaba of their father and they have no
reduction at all for the death of their father."
Malik said, "If they are young and unable to work, one does not wait for them
to grow up and they are slaves of their father's master unless the mukatab
has left what will pay their instalments for them until they can work. If there
is enough to cover their payments from what he has left, that is paid off on
their behalf and they are left in their condition until they can work, and then
if they pay, they are free. If they cannot manage it, they are slaves."
Malik, speaking about a mukatab who died and left property which was
not enough to cover his kitaba and he also left a child with him in his
kitaba and an umm walad, and the umm walad wanted to work
for them, said, "The money is paid to her if she is trustworthy and strong
enough to work. If she is not strong enough to work and not trustworthy with
property, she is not given any of it and she and the children of the mukatab
revert to being slaves of the master of the mukatab."
Malik said, "If people are written together in a single kitaba and
there is no kinship between them, and some of them are incapable and others work
until they are all set free, those who worked can claim from those who were
unable to the portion of what they paid for them, because some of them assumed
the responsibility for others."
39.7 Freeing a Mukatab on Payment of His Due before its Term
9 Malik related to me that he heard Rabi'a ibn Abi 'Abd ar-Rahman and others
mention that al-Furafisa ibn 'Umar al-Hanafi had a mukatab who offered to
pay him all of his kitaba that he owed. Al-Furafisa refused to accept it
and the mukatab went to Marwan ibn al-Hakam who was the amir of Madina
and brought up the matter. Marwan summoned al-Furafisa and told him to accept
the payment, but he refused. Marwan then ordered that the payment be taken from
the mukatab and placed in the treasury. He said to the mukatab,
"Go, you are free." When al-Furafisa saw that, he took the money.
Malik said, "What is done among us when a mukatab pays all the
instalments he owes before their term is that he is permitted to do so. The
master cannot refuse him that. That is because payment removes every condition
from the mukatab as well as service and travel. The setting free of a man
is not complete while he has any remaining slavery, and in such a situation
neither would his inviolability as a free man be complete and his testimony
permitted and inheritance obliged and so on. His master must not make any
stipulation of service on him after he has been set free."
Malik said that it was permitted for a mukatab who became extremely
ill and wanted to pay his master all his instalments because his heirs who were
free would then inherit from him and he had no children with him in his
kitaba to do so because by that he completed his inviolability as a free
man, his testimony was permitted, and his admission of what debts he owed to
people was permitted. His bequest was permitted as well. His master could not
refuse him that by claiming that he was escaping from him with his property.
39.8 The Inheritance of a Mukatab on Emancipation
10 Malik related to me that he had heard that Sa'd ibn al-Musayyab was asked
about a mukatab who was shared between two men. One of them freed his
portion and then the mukatab died leaving a lot of money. Sa'd replied, "The one
who kept his kitaba is paid what remains due to him, and then they divide
what is left between them both equally."
Malik said, "When a mukatab who fulfils his kitaba and becomes
free dies, he is inherited from by the people who wrote his kitaba and
their children and paternal relations - whoever is most deserving."
He said, "This is also for whoever is set free before he dies - his
inheritance is for the nearest people to him of children or paternal relations
who inherit by means of the wala'."
Malik said, "Brothers, written together in the same kitaba, are in the
same position as each other's children when none of them have children written
in the kitaba or born in the kitaba. When one of them dies and
leaves property, he pays for them whatever remains against them of their
kitaba and sets them free. The money left over after that goes to any
children he may have rather than to his brothers."
39.9 Conditions Concerning Mukatabs
11 Malik spoke to me about a man who wrote a kitaba for his slave for
gold or silver and stipulated against him in his kitaba a journey,
service, sacrifice or similar, which he specified by name, and then the
mukatab was able to pay all his instalments before the end of the term. He
said, "If he pays all his instalments and is set free and his inviolability as a
free man is complete, but he still has this condition to fulfil, the condition
is examined, and whatever involves his person in it, like service or a journey,
etc., is removed from him and his master has nothing against him for it.
Whatever there is of sacrifice, clothing or anything that he must pay that can
be treated as dinars and dirhams is valued and he pays it along with his
instalments, and he is not free until he has paid that along with his
instalments."
Malik said, "The generally agreed on way of doing things among us about which
there is no dispute is that a mukatab is in the same position as a slave
whom his master will free after a service of ten years. If the master dies
before ten years, what remains of his service goes to his heirs and his wala'
goes to the one who contracted to free him and to his male children or
paternal relations."
Malik spoke about a man who stipulated against his mukatab that he
could not travel, marry, or leave his land without his permission, and that if
he did so without his permission it was in his power to cancel the kitaba.
He said, "If the mukatab does any of these things, it is not in the man's
power to cancel the kitaba. Let the master put that before the ruler. The
mukatab, however, should not marry, travel, or leave the land of his
master without his permission, whether or not he stipulates it. That is because
the man may write a kitaba for his slave for one hundred dinars and the
slave may have one thousand dinars or more. He goes off and marries a woman and
pays her bride-price which wipes away his money and then he cannot pay. He
reverts to his master as a slave without property. Or else he may travel and his
instalments fall due while he is away. He cannot do so, and kitaba is not
based on such behaviour. That is in the hand of his master. If he wishes, he
gives him permission for it. If he wishes, he refuses it."
39.10 The Wala' of the Mukatab when He is Set Free
12 Malik said, "When a mukatab sets his own slaves free, it is only
permitted with the consent of his master. If his master gives him consent and
the mukatab sets his slave free, his wala' goes to the mukatab.
If the mukatab then dies before he has been set free himself, the
wala' of the freed slave goes to the master of the mukatab. If the
freed one dies before the mukatab has been set free, the master of the
mukatab inherits from him."
Malik said, "It is the same when a mukatab gives his slave a kitaba
and his mukatab is set free before he is himself. The wala' goes
to the master of the mukatab as long as he is not free. If the person who
wrote the kitaba is set free, then the wala' of his mukatab
who was freed before him reverts to him. If the first mukatab dies before
he pays or he cannot pay his kitaba and has free children, they do not
inherit the wala' of their father's mukatab because the wala'
has not been established for their father and he does not have the wala'
until he is free."
Malik, speaking about a mukatab who was shared between two men and one
of them forewent what the mukatab owed him and the other insisted on his
due, then the mukatab died and left property, said, "The one who did not
abandon any of what he was owed is paid in full. Then the property is divided
between them both just as if a slave had died, because what the first one did
was not setting him free - he only abandoned a debt that was owed to him."
Malik explained, "One thing that makes this clear is that when a man dies and
leaves a mukatab and he also leaves male and female children and one of
the children frees his portion of the mukatab, that does not establish
any of the wala' for him. Had it been a true setting free, the wala'
would have been established for whichever men and women freed him."
Malik continued, "Another thing that makes this clear is that if one of them
freed his portion and then the mukatab could not pay, the value of what
was left of the mukatab would be adjusted because of the one who freed
his portion. Had it been a true setting-free, his estimated value would have
been taken from the property of the one who set free until he had been set
completely free, as the Messenger of Allah, may Allah bless him and grant him
peace, said, 'Whoever frees his share in a slave, justly evaluated for him,
gives his partners their shares. If not he frees of him what he frees.' " (See
Book 37 hadith 1)
He added, "Another thing that makes this clear is that part of the sunna
of the Muslims in which there is no dispute, is that whoever frees his share of
a mukatab, the mukatab is not set fully free using his property.
Had he been truly set free, the wala' would have been his alone rather
than his partners. Another clarification is that part of the sunna of the
Muslims is that the wala' belongs to whoever writes the contract of
kitaba. The women who inherit from the master of the mukatab do not
have any of the wala' of the mukatab. If they free any of their
shares, the wala' belongs to the male children of the master of the
mukatab or his male paternal relations."
39.11 What is Not Permitted in Freeing a Mukatab
13 Malik said, "If people are together in the same kitaba, their
master cannot free one of them without consulting any companions he may have in
the kitaba and obtaining their consent. If they are young, however, their
consultation means nothing and it is not permitted to them. That is because a
man might work for all the people and he might pay their kitaba for them
to complete their freedom. The master approaches the one who will pay for them
and on whom their delivery from slavery depends and frees him and so makes those
who remain unable to pay. He does it intending benefit and increase for himself.
It is not permitted for him to do that to those of them who remain. The
Messenger of Allah, may Allah bless him and grant him peace, said, 'There must
be no harm nor return of harm.' This is the most severe harm."
Malik said about slaves who wrote a kitaba together that it was
permitted for their master to free the old and exhausted of them and the young
when such a one could not pay anything, and there was no help nor strength
contributed by them in the kitaba.
39.12 Freeing the Mukatab and the Umm Walad
14 Malik, speaking about a man who had his slave in a kitaba and then
the mukatab died and left his umm walad, and there remained for
him some of his kitaba to pay off and he left what would cover it, said,
"The umm walad is a slave since the mukatab was not freed until he
died, and he did not leave children that were set free by his paying what
remained so that the umm walad of their father was freed by their being
set free."
Malik said about a mukatab who set free a slave of his or gave
sadaqa with some of his property and his master did not know about it until
he had set the mukatab free, "That is what has been done and the master
does not rescind it. If the master of the mukatab learns about it before
he sets the mukatab free, he can reject it and not permit it. If the
mukatab is then freed and it becomes in his power to do so, he does not have
to free the slave nor give the sadaqa unless he does it voluntarily on
his own."
39.13 Bequests Involving Mukatabs
15 Malik said, "The best of what I have heard about a mukatab whose
dying master frees him is that the mukatab is valued according to what he
would fetch if he were sold. If that value is less than what remains against him
of his kitaba, his freedom is taken from the third that the deceased can
bequeath. One does not consider the number of dirhams which remain against him
in his kitaba. That is because, had he been killed, his killer would not
be in debt for other than his value on the day he killed him. Had he been
injured, the one who injured him would not be liable for other than the
blood-money of the injury on the day of his injury. One does not look at how
much he has paid of dinars and dirhams of the contract he has written because he
is a slave as long as any of his kitaba remains. If what remains in his
kitaba is less than his value, only whatever of his kitaba remains
owing from him is taken into account in the third of the property of the
deceased. That is because the deceased leaves him what remains of his kitaba
and so it becomes a bequest which the deceased has made."
Malik said, "An illustration of that is that if the price of the mukatab
is one thousand dirhams, and only one hundred dirhams of his kitaba
remain, his master leaves him the one hundred dirhams which complete it for him.
It is taken into account in the third of his master and by it he becomes free."
Malik said that if a dying man wrote his slave a kitaba, the value of
the slave was estimated. If there was enough to cover the price of the slave in
one third of his property, it was permitted for him to do so.
Malik said, "An illustration of that is that there is a slave worth one
thousand dinars. His master writes him a kitaba for two hundred dinars as
he is dying. A third of the property of the master is one thousand dinars, so
that is permitted for him. It is simply a bequest which he makes from one third
of his property. If the master has left bequests to people and there is no
surplus in the third after the value of the mukatab, one begins with
the mukatab, they follow it because the kitaba is setting free,
and setting free takes priority over other bequests. When those bequests are
paid from the kitaba of the mukatab, the heirs of the testator
have a a choice. If they want to give the people with bequests all their
bequests and the kitaba of the mukatab is theirs, they have that.
If they refuse and hand over the mukatab and what he owes to the people
with bequests they can do so, because the third commences with the mukatab
and because all the bequests which he makes are as one."
If the heirs then say, "What our fellow bequeathed was more than one third of
his property and he has taken what was not his," Malik said, "His heirs choose.
They are told, 'Your companion has made the bequests you know about and if you
would like to give them to those who are to receive them according to the
deceased's bequests, then do so. If not, hand over to the people with bequests
one third of the total property of the deceased.'"
Malik continued, "If the heirs surrender the mukatab to the people
with bequests, the people with bequests have what he owes of his kitaba.
If the mukatab pays what he owes of his kitaba, they take that as
their bequests according to their shares. If the mukatab cannot pay, he
is a slave of the people with bequests and does not return to the heirs because
they gave him up when they made their choice, and because when he was
surrendered to the people with bequests, they were liable. If he died, they
would not have anything against the heirs. If the mukatab dies before he
pays his kitaba and he leaves property worth more than what he owes, his
property goes to the people with bequests. If the mukatab pays what he
owes, he is free and his wala' returns to the paternal relations of the
one who wrote the kitaba for him."
Malik, speaking about a mukatab who owed his master ten thousand
dirhams in his kitaba and when the master died, he remitted one thousand
dirhams from it. He said, "The mukatab is valued and dirhams in his
kitaba and then, when the master died, he remitted one thousand dirhams from
it, said, "The mukatab is valued and his value is looked at. If his value
is one thousand dirhams and the reduction is a tenth of the kitaba, that
portion of the slave's price is one hundred dirhams, being a tenth of the price.
A tenth of the kitaba is therefore reduced for him - that is converted to
a tenth of the price in cash. That is as if he had had all of what he owed
reduced for him. Had he done that, only the value of the slave - one thousand
dirhams - would have been taken into account in the third of the property of the
deceased. If that which he had remitted is half of the kitaba, half the
price is taken into account in the third of the property of the deceased. If it
is more or less than that, it is according to this reckoning."
Malik said, "When a man reduces the kitaba of his mukatab by
one thousand dirhams at his death from a kitaba of ten thousand dirhams,
and he does not stipulate whether it is from the beginning or the end of his
kitaba, each instalment is reduced for him by one-tenth."
Malik said, "If a man dies and remits one thousand dirhams from his
mukatab from the beginning or the end of his kitaba, and the original
basis of the kitaba is three thousand dirhams, then then the mukatab's
cash value is estimated. Then that value is divided. That thousand which is from
the beginning of the kitaba is converted into its portion of the price
according to its proximity to the term and its precedence and then the thousand
which follows the first thousand is according to its precedence also until it
comes to its end, and every thousand is paid according to its place in advancing
and deferring the term because what is deferred of that is less in respect of
its price. Then it is placed in the third of the deceased according to whatever
of the price befalls that thousand according to the difference in preference of
that, whether it is more or less, then it is according to this reckoning."
Malik, speaking about a man bequeathing another man a fourth of a mukatab,
or freeing a fourth, and then the first man died and the mukatab died and
left a lot of property, more than he owed, said, "The heirs of the first master
and the one who was willed a fourth has a third of what is left over, and the
one willed a fourth has a third of what is left over after the kitaba is
paid. The heirs of his master get two-thirds. That is because the mukatab
is a slave as long as any of his kitaba remains to be paid. He is
inherited from by the possession of his person."
Malik said about a mukatab whose dying master frees him, "If the third
of the deceased will not cover him, he is freed from it according to what the
third will cover and his kitaba is decreased accordingly. If the
mukatab owed five thousand dirhams and his value is two thousand dirhams
cash, and the third of the deceased amount to one thousand dirhams, half of him
is freed and half of the kitaba has been reduced for him."
Malik said about a man who said in his will, "My slave so-and-so is free and
write a kitaba for so-and-so" that the setting free had priority over the
kitaba.
Important note to learn and read quran online
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