Freeing a Share Held in a Slave
1 Malik related to me from Nafi' from 'Abdullah ibn 'Umar
that the Messenger of Allah, may Allah bless him and grant him peace, said, "If
a man frees his share of a slave and has enough money to cover the full price of
the slave justly evaluated, he must buy out his partners so that the slave is
completely freed. If he does not have the money, then he is partially free."
[cf Bukhari 2386]
Malik said, "The generally agreed on way of doing things among us in the case
of a slave whose master makes a bequest to free part of him after his death - a
third, a fourth, a half, or any such share, is that only the portion of him is
is freed that his master has named. This is because the freeing of that portion
is only obliged to take place after the death of the master because the master
has the option to withdraw the bequest as long as he lives. When the slave is
freed from his master, the master is a testator and the testator only has access
to free what he can take from his property, being the third of the property he
is allowed to bequeath, and the rest of the slave is not free because the man's
property has gone out of his hands. How can the rest of the slave which belongs
to other people be free when they did not initiate the setting-free and did not
confirm it and they do not have the wala' established for them? Only the
deceased could do that. He was the one who freed him and the one for whom the
wala' is confirmed. That is not to be borne by another's property unless he
bequeaths, within the third of his property, what remains of a slave to be
freed. That is a request against his partners and inheritors and the partners
must not refuse the slave that when it is within the third of the dead man's
property because there is no harm in that to the inheritors."
Malik said, "If a man frees a third of his slave while he is critically ill,
he must complete the emancipation so he is completely free of him, if it is
within the third of his property that he has access to, because he is not
considered to be the same as a man who frees a third of a slave after his death
because had the one who freed a third of his slave after his death lived, he
could have cancelled it and the slave's being set free would be of no effect.
The master who made the freeing of the third of the slave irrevocable in his
illness would still have to free all of him if he lived. If he died, the slave
would be set free within the third of the bequest. That is because the command
of the deceased is permissible in his third as the command of the healthy is
permissible in all his property."
38.2 Making Conditions when Freeing a Slave
2 Malik said, "A master who frees a slave of his and settles his emancipation
so that his testimony is permited, his inviolability is complete, and his right
to inherit confirmed, cannot impose stipulations on him like those imposed on a
slave about property or service, nor can he get him to do anything connected
with slavery because the Messenger of Allah, may Allah bless him and grant him
peace, said, "If a man frees his share of a slave and has enough money to cover
the entire price of the slave justly evaluated for him, he must give his
partners their shares so that the slave is completely free."
Malik commented, "If he owns the slave completely, it is more proper to free
him completely and not mingle any slavery with it."
38.3 People who Free Slaves and Own No Other Property
3 Malik related to me from Yahya ibn Sa'id and somebody else from al-Hasan
ibn Abi al-Hasan al-Basri and from Muhammad ibn Sirin that a man in the time of
the Messenger of Allah, may Allah bless him and grant him peace, freed six of
his slaves while he was dying. The Messenger of Allah, may Allah bless him and
grant him peace, drew lots between them and freed a third of those slaves.
Malik added that he had heard that the man did not have any property besides
them.
[In Muslim]
4 Malik related to me from Rabi'a ibn Abi 'Abd ar-Rahman that a man in the
time of Aban ibn 'Uthman's amirate freed all of his slaves and they were his
sole property. Aban bn 'Uthman took charge of the slaves and they were divided
into three groups. Then he drew lots on the basis that whichever group drew the
short straw would be free. The straw fell to one of the thirds, and that third
was set free.
38.4 Judgement on the Property of Slaves when They are Set Free
5 Malik related to me that he heard Ibn Shihab say, "The precedent of the
sunna is that when a slave is set free, his property follows him."
Malik said, "One thing which makes clear that a slave's property follows him
when he is freed is that when the contract (kitaba) is written for his
freedom, his property follows him even if he does his freedom, his property
follows him even if he does not stipulate that. That is because the bond of
kitaba is the bond of wala' when it is complete. The property of a
slave and a mukatab are not treated in the same way as any children they
may have. Their children are only treated in the same way as their property.
This is because the sunna, about which there is no dispute, is that when
a slave is freed, his property follows him and his children do not follow him,
and when a mukatab writes the contract for his freedom, his property
follows him but his children do not follow him."
Malik said, "One thing which makes this clear is that when a slave or
mukatab becomes bankrupt, their property is taken but the mothers of their
children and their children are not taken because they are not their property."
Malik said, "Another thing which makes it clear is that when a slave is sold
and the person who buys him stipulates the inclusion of his property, his
children are not included in that property."
Malik said, "Another thing which makes it clear is that when a slave does
injury to someone, he and his property are taken, but his children are not
taken."
38.5 Freeing Slaves who are Umm Walads and a General Section on
Freeing
6 Malik related to me from Nafi' from 'Abdullah ibn 'Umar that 'Umar ibn
al-Khattab said, "If a slave-girl gives birth to a child by her master, he must
not sell her, give her away, or bequeath her. He enjoys her and when he dies,
she is free."
7 Malik related to me that he had heard that a slave-girl who had been beaten
by her master with a red-hot iron came to 'Umar ibn al-Khattab and he set her
free.
Malik said, "The generally agreed on way of doing things among us is that a
man is not permitted to be set free while he has a debt which exceeds the value
of his property. A boy is not allowed to be set free until he has reached
puberty. The young person whose affairs are managed cannot be set free with his
property, even when he reaches puberty, until he manages his property."
38.6 Slaves Permitted to be Freed when a Slave Must be Freed by Obligation
8 Malik related to me from Hilal ibn Usama from 'Ata' ibn Yasar that 'Umar
ibn al-Hakam said, "I went to the Messenger of Allah, may Allah bless him and
grant him peace, and said, 'Messenger of Allah, a slave-girl of mine was tending
my sheep. I came to her and one of the sheep was missing. I asked her about it
and she said that a wolf had eaten it. I became angry, as I am one of the
children of Adam, and struck her on the face. As it happens, I have to set a
slave free, so shall I free her?' The Messenger of Allah, may Allah bless him
and grant him peace, questioned her, 'Where is Allah?' She said, 'In heaven.' He
asked, 'Who am I?' She replied, 'You are the Messenger of Allah.' The Messenger
of Allah, may Allah bless him and grant him peace, said, 'Free her.'"
[ash-Shafi'i in the Risala]
9 Malik related to me from Ibn Shihab from 'Ubaydullah ibn 'Abdullah ibn
'Utba ibn Mas'ud that one of the Ansar came to the Messenger of Allah, may Allah
bless him and grant him peace, with a black slave-girl of his. He said,
"Messenger of Allah, I must set free a slave who is a believer. If you think
that she is a believer, I will set her free." The Messenger of Allah, may Allah
bless him and grant him peace, questioned her, "Do you testify that there is no
god but Allah?" She said, "Yes." He asked, "Do you testify that Muhammad is the
Messenger of Allah?" She said, "Yes." He went on, "Are you certain about the
Rising after death?" She replied, "Yes." The Messenger of Allah, may Allah bless
him and grant him peace, said, "Free her."
10 Malik related to me that he had heard that al-Maqburi said that Abu
Hurayra was asked whether a man who had to free a slave could free an illegimate
child to fulfil that obligation. Abu Hurayra said, "Yes, that will give
satisfaction for him."
11 Malik related to me that he had heard that Fadala ibn 'Ubayd al-Ansari,
one of the Companions of the Messenger of Allah, may Allah bless him and grant
him peace, was asked whether it was permissible for a man who had to free a
slave to free an illegitimate child. He said, "Yes, that will give satisfaction
for him."
38.7 Slaves Not Permitted to be Freed when a Slave Must be Freed by
Obligation
12 Malik related to me that he had heard that 'Abdullah ibn 'Umar was asked
whether a slave could be bought for the specific purpose of fulfilling the
obligation of freeing a slave and he said, "No."
Malik said, "That is the best of what I have heard on the obligation of
freeing slaves. Someone who has to set a slave free because of an obligation on
him may not buy one on the condition that he sets it free, because by doing so
whatever he buys is not completely a slave since he has reduced its price by the
condition he has made of setting it free."
Malik added, There is no harm, however, in someone buying a person expressly
to set him free."
Malik said, "The best of what I have heard on the obligation of freeing
slaves is that it is not permitted to free a Christian or a Jew to fulfil it,
and one does not free a mukatab or a mudabbar or an umm walad
or a slave to be freed after a certain number of years or a blind person. There
is no harm in freeing a Christian, Jew, or Magian voluntarily because Allah, the
Blessed, the Exalted, says in His Book, '...either as a favour then or by
ransom.' (47:4) The favour is setting free."
Malik said, "As for obligations of freeing slaves which Allah has mentioned
in the Book, one only frees a believing slave for them."
Malik said, "It is like that when feeding poor people for kaffara. One
must only feed Muslims and one does not feed anyone outside of the deen
of Islam."
38.8 Freeing the Living for the Dead
13 Malik related to me from 'Abd ar-Rahman ibn Abi 'Amra al-Ansari that his
mother had wanted to make a bequest, but she delayed until morning and died. She
had intended to set someone free so 'Abd ar-Rahman said, "I asked al-Qasim ibn
Muhammad, 'Will it help her if I free a slave for her?' Al-Qasim replied, 'Sa'd
ibn 'Ubada said to the Messenger of Allah, may Allah bless him and grant him
peace, "My mother has died, will it help her if I set a slave free for her?" The
Messenger of Allah, may Allah bless him and grant him peace, replied, "Yes."'"
14 Malik related to me that Yahya ibn Sa'id said, "'Abd ar-Rahman ibn Abi
Bakr died in his sleep and 'A'isha, the wife of the Prophet, may Allah bless him
and grant him peace, set free many slaves for him." Malik said, "This is what I
like best of what I have heard on the subject."
38.9 The Excellence of Freeing Slaves, Freeing Adulteresses and
Illegitimate Children
15 Malik related to me from Hisham ibn 'Urwa from his
father from 'A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, that the Messenger of Allah, may Allah bless him and grant him peace, was
asked what was the most excellent kind of slave to free. The Messenger of Allah,
may Allah bless him and grant him peace, answered, "The most expensive and the
most valuable to his master."
[cf Bukhari 2382]
16 Malik related to me from Nafi' that 'Abdullah ibn 'Umar freed an
illegitimate child and its mother.
38.10 The Right of the One who Sets Free to the Wala'
17 Malik related to me from Hisham ibn 'Urwa from his
father that 'A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, said, "Barira came to me and said, 'I have written myself as a mukatab
for my people for nine uqiyas, one uqiya per year, so help me.'
'A'isha said, 'If your people agree that I pay it all to them for you and that,
if I pay it, your wala' is mine, then I will do it.' Barira went to her
masters and told them that and they did not agree. She came back from her
masters while the Messenger of Allah, may Allah bless him and grant him peace,
was sitting. She said to 'A'isha, 'I offered that to them and they refused me
unless they had the wala'.' The Messenger of Allah, may Allah bless him
and grant him peace, heard that and asked her about it. 'A'isha told him and the
Messenger of Allah, may Allah bless him and grant him peace, said, 'Take her and
stipulate that the wala' is yours for the wala' is for the one who
sets free.' So 'A'isha did that and then the Messenger of Allah, may Allah bless
him and grant him peace, stood up in front of the people and praised Allah and
gave thanks to Him. Then he said, 'What is wrong with people who make conditions
which are not in the Book of Allah? Any condition which is not in the Book of
Allah is invalid even if it is a hundred conditions. The decree of Allah is
truer and the conditions of Allah are firmer and the wala' only belongs
to the one who sets free.'"
[cf Bukhari 2060]
18 Malik related to me from Nafi' from 'Abdullah ibn 'Umar that 'A'isha, Umm
al-Muminin, wanted to buy a slave-girl and set her free. Her people said, "We
will sell her to you provided that her wala' is ours." She mentioned that
to the Messenger of Allah, may Allah bless him and grant him peace, and he said,
"Do not let that stop you for the wala' only belongs to the one who sets
free."
[cf Bukhari 2061]
19 Malik related to me from Yahya ibn Sa'id from 'Amra bint
'Abd ar-Rahman that Barira came asking the help of 'A'isha, Umm al-Muminin.
'A'isha said, "If your masters agree that I pay them your price in one lump sum
and set you free, I will do it." Barira mentioned that to her masters and they
said, "No, not unless your wala' is ours." Yahya ibn Sa'id added that
'Amra bint 'Abd ar-Rahman claimed that 'A'isha mentioned that to the Messenger
of Allah, may Allah bless him and grant him peace, and the Messenger of Allah,
may Allah bless him and grant him peace, said, "Buy her and set her free. The
wala' only belongs to the one who sets free."
[cf Bukhari 2425]
20 Malik related to me from 'Abdullah ibn Dinar from
'Abdullah ibn 'Umar that the Messenger of Allah, may Allah bless him and grant
him peace, forbade selling or giving away the wala'.
[cf Bukhari 2398; also in Muslim]
Malik said that it was not permissible for a slave to buy himself from his
master on the provision that he could give the wala' to whomever he
wished, as the wala' was for the one who set him free, and that, had a
man given permission to his mawla to give the wala' to whomever he
wished, it would not have been permitted because the Messenger of Allah, may
Allah bless him and grant him peace, had said, "The wala' is for the one
who sets free." The Messenger of Allah, may Allah bless him and grant him peace,
forbade selling or giving away the wala'. And so it was permitted to the
master to allow such a condition and to give him permission to give the wala'
to whomever he liked, then it would be a gift.
38.11 Slaves Attracting the Wala' when Set Free
21 Malik related to me from Rabi'a ibn 'Abd ar-Rahman that Az-Zubayr ibn
al-'Awwam bought a slave and set him free. The slave had children by a free
woman. When Az-Zubayr freed him, he said, "They are my mawali." The man
argued, "They are the mawali of their mother. Rather, they are our
mawali." They presented the dispute to 'Uthman ibn 'Affan and 'Uthman gave a
judgement that Az-Zubayr had their wala'.
Malik related to me that he had heard that Sa'id ibn al-Musayyab was asked
who had the wala' of the children whom a slave had by a free woman. Sa'id
said, "If their father dies and he is a slave who was not set free, their
wala' belongs to the mawali of their mother."
Malik said, "Similarly in the case of a child of a woman who is a mawla
who has been divorced by li'an, the child is attached to the mawali
of his mother and they are his mawali. If he dies, they inherit from him.
If he commits a crime, they pay the blood-money for him. If his father
acknowledges him, he is given a kinship to him and his wala' goes to the
mawali of his father - they are his heirs and pay his blood-money - and his
father is punished with the hadd punishment."
Malik said, "It is the same for a free-born woman divorced by li'an.
If the husband who curses her by li'an does not acknowledge her child,
the child is dealt with in the same way except that the rest of his inheritance
after the inheritance of his mother and his brothers from his mother goes to all
the Muslims as long as he was not given kinship to his father. The child of the
li'an is attached to the patronage of the mawali of his mother until
his father acknowledges him because he does not have a lineage or paternal
relations. If his parentage is confirmed, it goes to his paternal relations."
Malik said, "The generally agreed on way of doing things among us about a
child of a slave by a free woman while the slave's father is free is that the
grandfather (the father of the slave) attracts the wala' of his son's
free children by a free woman. They leave their inheritance to him as long as
their father is a slave. If the father becomes free, the wala' returns to
his mawali. If he dies and he is still a slave, the inheritance and the
wala' go to the grandfather. If the slave has two free sons and one of
them dies while the father is still a slave, the grandfather, the father of the
father, attracts the wala' and the inheritance.
Malik spoke about a slave-girl, narried to a slave, who was set free while
she was pregnant and then her husband became free before she gave birth or after
she gave birth. He said, "The wala' of what is in her womb goes to the
person who set the mother free because slavery touched the child before the
mother was set free. It is not treated in the same way as a child conceived by
its mother after she has been set free because the wala' of such a child
is attracted by the father when he is set free."
Malik said that if a slave asked his master's permission to free a slave of
his and his master gave him permission, the wala' of the freed slave went
to the master of his master, and his wala' did not return to the master
who had set him free, even if he were to become free himself."
38.12 The Inheritance of the Wala'
22 Malik related to me from 'Abdullah ibn Abi Bakr ibn Muhammad ibn 'Amr ibn
Hazm from 'Abd al-Malik ibn Abi Bakr ibn 'Abd ar-Rahman ibn al-Harith ibn Hisham
that his father told him that al-'Asi ibn Hisham had died leaving three sons,
two by one wife and one by another wife. One of the two with the same mother
died and left property and mawali. His full brother inherited his
property and the wala' of his mawali. Then he also died and left
as heirs his son and his paternal half-brother. His son said, "I obtain what my
father inherited of property and the wala' of the mawali." His
brother said, "It is not like that. You obtain the property. As for the wala'
of the mawali, that is not the case. Do you think that had it been my
first brother who died today, I would not have inherited from him?" They argued
and went to 'Uthman ibn 'Affan. He gave a judgement that the brother had the
wala' of the mawali.
23 Malik related to me from 'Abdullah ibn Abi Bakr ibn Hazm that his father
told him that he was sitting with Aban ibn 'Uthman when an argument was brought
to him between some people from the Juhayna tribe and some people from the Banu
al-Harith ibn al-Khazraj. A woman of the Juhayna tribe was married to a man from
the Banu al-Harith ibn al-Khazraj called Ibrahim ibn Kulayb. She died and left
property and mawali and her son and husband inherited from her. Then her
son died and his heirs said, "We have the wala' of the mawali. Her
son obtained that." Those of the Juhayna said, "That is not the case. They are
the mawali of our female associate. When her child dies, we have their
wala' and we inherit it." Aban ibn 'Uthman gave a judgement that the people
of the Juhayna tribe did indeed have the wala' of the mawali.
24 Malik related to me that he had heard that Sa'id ibn al-Musayyab spoke
about a man who died and left three sons and left mawali whom he had
freed. Then two of his sons died leaving children. He said, "The third remaining
son inherits the mawali. When he dies, his children and his brothers'
children share equally in the wala' of the mawali."
38.13 The Inheritance of Slaves Set Free and the Wala' of Jews and
Christians who Set Slaves Free
25 Malik related to me that he had asked Ibn Shihab about a slave who was
released. He said, "His gives his wala' to whomever he likes. If he dies
and has not given his wala' to anyone, his inheritance goes to the
Muslims and his blood-money is paid by them."
Malik said, "The best of what has been heard about a slave who is released is
that no one gets his wala', his inheritance goes to the Muslims and they
pay his blood-money.
Malik said that when the slave of a Jew or Christian became Muslim and was
set free before being sold, the wala' of the freed slave went to the
Muslims. If the Jew or Christian became Muslim later, the wala' still did
not revert to him."
He said, "However, if a Jew or Christian frees a slave of their own religion,
and then the freed person becomes Muslim before the Jew or Christian who set him
free becomes Muslim and then the one who freed him becomes a Muslim, his wala'
reverts to him because the wala' was confirmed for him on the day he
set him free."
Malik said that the Muslim child of a Jew or Christian inherited the
mawali of his Jewish or Christian father when the freed mawla became
Muslim before the one who set him free became Muslim. If the freed person was
already Muslim when he was set free, the Muslim children of the Christian or Jew
had nothing of the wala' of a Muslim slave because the Jew and the
Christian did not have the wala'. The wala' of a Muslim slaves goes to
the Muslim community.
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