Yahya related to me from Malik from Hisham ibn Urwa
from his father from Zaynab bint Abi Salama from Umm
Salama, 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, said, "I am but a man to
whom you bring your disputes. Perhaps one of you is more
eloquent in his proof than the other, so I give judgement
according to what I have heard from him. Whatever I decide
for him which is part of the right of his brother, he must
not take any of it, for I am granting him a portion of the
Fire."
Malik related to me from Yahya ibn Said from Said ibn
al-Musayyab that Umar ibn al-Khattab had a dispute brought
to him between a muslim and a jew. Umar saw that the right
belonged to the jew and decided in his favour. The jew
said to him, "By Allah! You have judged correctly.'' So
Umar ibn al-Khattab struck him with a whip and said, "How
can you be sure." The jew said to him, "We find that there
is no judge who judges correctly but that there is an
angel on his right side and an angel on his left side who
guide him and give him success in the truth as long as he
is with the truth. When he leaves the truth, they rise and
leave him."
Yahya related to me from Malik from Abdullah ibn Abi
Bakr ibn Muhammad ibn Amr ibn Hazm from his father from
Abdullah ibn Amr ibn Uthman from Abu Amra al-Ansari from
Zayd ibn Khalid al-Juhani that the Messenger of Allah, may
Allah bless him and grant him peace, said, "Shall I not
tell you who is the best of witnesses? The one who brings
his testimony before he is asked for it, or tells his
testimony before he is asked for it."
Malik related to me that Rabia ibn Abi Abd ar-Rahman
said, "An Iraqi man came before Umar ibn al-Khattab and
said, 'I have come to you because of a matter which has no
beginning and no end.' Umar said, 'What is it?' The man
said, 'False testimony has appeared in our land.' Umar
said, 'Is that so?' He said, 'Yes.' Umar said, 'By Allah!
A man is not detained in Islam without just witnesses.' "
Malik related to me that Umar ibn al-Khattab said, "The
testimony of some one known to bear a grudge or to be
unreliable is not accepted."
Section: Judgement on Testimony of Recipients of Hadd-Punishments
Yahya said from Malik that he heard from Sulayman ibn
Yasar and others that when they were asked whether the
testimony of a man flogged for a hadd crime was permitted,
they said, "Yes, when repentance (tawba) appears from
him."
Malik related to me that he heard Ibn Shihab being
asked about that and he said the like of what Sulayman ibn
Yasar said.
Malik said, "That is what is done in our community. It
is by the word of Allah, the Blessed, the Exalted, 'And
those who accuse women who are muhsan, and then do not
bring four witnesses, flog them with eighty lashes, and do
not accept any testimony of theirs ever. They indeed are
evil-doers, save those who turn in tawba after that and
make amends. Allah is Forgiving, Merciful.' " (Sura 24
ayat 4).
Section: Judgement Based on Oaths with One Witness
Yahya said, "Malik said from Jafar ibn Muhammad from
his father that the Messenger of Allah, may Allah bless
him and grant him peace, pronounced judgement on the basis
of an oath with one witness."
From Malik from Abu'z-Zinad that Umar ibn Abd al-Aziz
wrote to Abd al-Hamid ibn Abd ar-Rahman ibn Zayd ibn al-Khattab
who was the governor of Kufa, "Pronounce judgement on the
basis of an oath with one witness."
Malik related to me that he heard that Abu Salama ibn
Abd ar-Rahman and Sulayman ibn Yasar were both asked,
"Does one pronounce judgement on the basis of an oath with
one witness?" They both said, "Yes."
Malik said, "The precedent of the sunna in judging by
an oath with one witness is that if the plaintiff takes an
oath with his witness, he is confirmed in his right. If he
draws back and refuses to take an oath, the defendant is
made to take an oath. If he takes an oath, the claim
against him is dropped. If he refuses to take an oath, the
claim is confirmed against him."
Malik said, "This procedure pertains to property cases
in particular. It does not occur in any of the hadd-punishments,
nor in marriage, divorce, freeing slaves, theft or
slander. If some one says, 'Freeing slaves comes under
property,' he has erred. It is not as he said. Had it been
as he said, a slave could take an oath with one witness,
if he could find one, that his master had freed him.
"However, when a slave lays claim to a piece of
property, he can take an oath with one witness and demand
his right as the freeman demands his right."
Malik said, "The sunna with us is that when a slave
brings somebody who witnesses that he has been set free,
his master is made to take an oath that he has not freed
him, and the slave's claim is dropped."
Malik said, "The sunna about divorce is also like that
with us. When a woman brings somebody who witnesses that
her husband has divorced her, the husband is made to take
an oath that he has not divorced her. If he takes the
oath, the divorce does not proceed . "
Malik said, "There is only one sunna of bringing a
witness in cases of divorce and freeing a slave. The right
to make an oath only belongs to the husband of the woman,
and the master of the slave. Freeing is a hadd matter, and
the testimony of women is not permitted in it because when
a slave is freed, his inviolability is affirmed and the
hadd punishments are applied for and against him. If he
commits fornication and he is a muhsan, he is stoned. If
he kills a slave, he is killed for it. Inheritance is
established for him, between him and whoever inherits from
him. If somebody disputes this, arguing that if a man
frees his slave and then a man comes to demand from the
master of the slave payment of a debt, and a man and two
women testify to his right, that establishes the right
against the master of the slave so that his freeing him is
cancelled if he only has the slave as property, inferring
by this case that the testimony of women is permitted in
cases of setting free. The case is not as he suggests
(i.e. it is a case of property not freeing). It is like a
man who frees his slave, and then the claimant of a debt
comes to the master and takes an oath with one witness,
demanding his right. By that, the freeing of the slave
would be cancelled. Or else a man comes who has frequent
dealings and transactions with the master of the slave. He
claims that he is owed money by the master of the slave.
Someone says to the master of the slave, 'Take an oath
that you don't owe what he claims'. If he draws back and
refuses to take an oath, the one making the claim takes an
oath and his right against the master of the slave is
confirmed. That would cancel the freeing of the slave if
it is confirmed that property is owed by the master."
Malik said, "It is the same case with a man who marries
a slave-girl and then the master of the slave-girl comes
to the man who has married her and claims, 'You and
so-and-so have bought my slave-girl from me for such an
amount of dinars. The husband of the slave-girl denies
that. The master of the slave-girl brings a man and two
women and they testify to what he has said. The sale is
confirmed and his claim is considered true. So the
slave-girl is haram for her husband and they have to
separate, even though the testimony of women is not
accepted in divorce."
Malik said, "It is also the same case with a man who
accuses a free man, so the hadd falls on him. A man and
two women come and testify that the one accused is a
slave. That would remove the hadd from the accused after
it had befallen him, even though the testimony of women is
not accepted in accusations involving hadd punishments."
Malik said, "Another similar case in which judgement
appears to go against the precedent of the sunna is that
two women testify that a child is born alive and so it is
necessary for him to inherit if a situation arises where
he is entitled to inherit, and the child's property goes
to those who inherit from him, if he dies, and it is not
necessary that the two women witnesses should be
accompanied by a man or an oath even though it may involve
vast properties of gold, silver, live-stock, gardens and
slaves and other properties. However, had two women
testified to one dirham or more or less than that in a
property case, their testimony would not affect anything
and would not be permitted unless there was a witness or
an oath with them."
Malik said, "There are people who say that an oath is
not acceptable with only one witness and they argue by the
word of Allah the Blessed, the Exalted, and His word is
the Truth, 'And call in to witness two witnesses, men; or
if the two be not men, then one man and two women, such
witnesses as you approve of.' (Sura 2 ayat 282). Such
people argue that if he does not bring one man and two
women, he has no claim and he is not allowed to take an
oath with one witness."
Malik said, "Part of the proof against those who argue
this, is to reply to them, 'Do you think that if a man
claimed property from a man, the one claimed from would
not swear that the claim was false?' If he swears, the
claim against him is dropped. If he refuses to take an
oath, the claimant is made to take an oath that his claim
is true, and his right against his companion is
established. There is no dispute about this with any of
the people nor in any country. By what does he take this?
In what place in the Book of Allah does he find it? So if
he confirms this, let him confirm the oath with one
witness, even if it is not in the Book of Allah, the
Mighty, the Majestic! It is enough that this is the
precedent of the sunna. However, man wants to recognise
the proper course of action and the location of the proof.
In this there is a clarification for what is obscure about
that, if Allah ta'ala wills."
Section: Judgement on a Deceased with a Debt against Him
and a Debt for Him, and only One Witness
Yahya said that Malik spoke about a man who died and
had a debt owing to him and there was one witness, and
some people had a debt against him and they had only one
witness, and his heirs refused to take an oath on their
rights with their witness. He said, "The creditors take an
oath and take their rights. If there is anything left
over, the heirs do not take any of it. That is because the
oaths were offered to them before and they abandoned them,
unless they say, 'We did not know that our companion had
extra,' and it is known that they only abandoned the oaths
because of that. I think that they should take an oath and
take what remains after his debt."
Yahya said, "Malik said about Jamil ibn Abd ar-Rahman
al-Muadhdin that he was present with Umar ibn Abd al-Aziz
when he was judging between people. If a man came to him
with a claim against a man, he examined whether or not
there were frequent transactions and dealings between
them. If there were, the defendant could make an oath. If
there was nothing of that nature he did not accept an oath
from him."
Malik summed up, "What is done in our community is that
if some one makes a claim against a man, it is examined.
If there are frequent transactions and dealings between
them, the defendant is made to take an oath. If he takes
an oath, the claim against him is dropped. If the
defendant refuses to take an oath, and returns the oath to
the claimant, the one claiming his right takes an oath and
takes his due."
Yahya said, "Malik said from Hisham ibn Urwa that
Abdullah ibn az-Zubayr gave judgment based on the
testimony of children concerning the injuries between
them."
Malik said, "The generally agreed on way of doing
things in our community is that the testimony of children
is permitted concerning injuries between them. It is not
accepted about anything else. It is only permitted between
them if they testify before they leave the scene of the
incident and have been deceived or instructed. If they
leave the scene, they have no testimony unless they call
just witnesses to witness their testimony before they
leave."
Section: Perjury on the Mimbar of the Prophet, may Allah
Bless Him and Grant Him Peace
Yahya said, Malik related to us from Hisham ibn Hisham
ibn Utba ibn Abi Waqqas from Abdullah ibn Nistas from
Jabir ibn Abdullah al-Ansari that the Messenger of Allah,
may Allah bless him and grant him peace, said, 'If someone
swears a false oath near this mimbar of mine, he will take
his seat in the fire.' "
Malik related to me from al-Ala ibn Abd ar-Rahman from
Mabad ibn Kab as-Salami from his brother Abdullah ibn Kab
ibn Malik al-Ansari from Abu Umama that the Messenger of
Allah, may Allah bless him and grant him peace, said,
"Whoever cuts off the right of a muslim man by his oath,
Allah forbids him the Garden and obliges the Fire for
him." They said, "Even if it is something insignificant,
Messenger of Allah?" He said, "Even if it is a
tooth-stick, even if it is a tooth-stick," repeating it
three times.
Yahya said that Malik had said from Da'ud ibn al-Husayn
that he heard Abu Ghatafan ibn Tarif al-Muriyi say, "Zayd
ibn Thabit al-Ansari and Ibn Muti had a dispute about a
house which they shared. They went to Marwan ibn al-Hakam
who was the Amir of Madina. Marwan decided that Zayd ibn
Thabit must take an oath on the mimbar. Zayd ibn Thabit
said, 'I swear to it where I am.' Marwan said, 'No, by
Allah! only in the place of sorting out claims (i.e. the
mimbar).' Zayd ibn Thabit began to take an oath that his
right was true, and he refused to take an oath near the
mimbar. Marwan ibn al-Hakam began to wonder at that."
Malik said, "I do not think that anyone should be made
to take an oath near the mimbar for less than a fourth of
a dinar, and that is three dirhams."
Section: Prohibition against Forfeiting Pledges Given on
Security
Yahya said, "Malik related to us from Ibn Shihab from
Sa'id ibn al-Musayyab that the Messenger of Allah, may
Allah bless him and grant him peace, said, 'The pledge
given as security is not forfeited.' "
Malik said, "The explanation of that according to what
we think - and Allah knows best - is that a man gives a
pledge to somebody in security for something. The pledge
is superior to that for which he pawned it. The pledger
says to the pawn-broker, 'I will bring you your due, after
such-and-such a time. If not, the pledge is yours for what
it was pawned for.' "
Malik said, "This transaction is not good and it is not
halal. This is what was forbidden. If the owner brings
what he pledged it for after the period, it is his. I
think that the time condition is void."
Section: Judgement on Pledging Fruit and Animals as
Security
Yahya said, "I heard Malik say that if a man pledges
his garden for a stated period and the fruits of that
garden are ready before the end of that period, the fruits
are not included in the pledge with the real estate,
unless it is stipulated by the pledger in his pledge.
However, if a man receives a slave-girl as a pledge and
she is pregnant or she becomes pregnant after his taking
her as a pledge, her child is included with her.
"A distinction is made between the fruit and the child
of the slave-girl. The Messenger of Allah, may Allah bless
him and grant him peace, said, 'If someone sells a palm
which has been pollinated, the fruit belongs to the seller
unless the buyer stipulates its inclusion.' The undisputed
way of doing things in our community is that if a man
sells a slave-girl or an animal with a foetus in its womb,
the foetus belongs to the buyer, whether or not the buyer
stipulates it. The palm is not like the animal. Fruit is
not like the foetus in its mother's womb. Part of what
clarifies that is also that it is the usage of people to
have a man pawn the fruit of the palm apart from the palm.
No one pawns the foetus in its mother's womb whether of
slaves or animals."
Section: Judgement on Pledging Animals as Security
Yahya said that he had heard Malik say, "The undisputed
way of doing things in our community concerning pledges is
that in cases where land or a house or an animal are known
to have been destroyed whilst in the possession of the
broker of the pledge, and the circumstances of the loss
are known, the loss is against the pledger. There is no
deduction made from what is due to the broker at all. Any
pledge which perishes in the possession of the broker and
the circumstances of its loss are only known by his word,
the loss is against the broker and he is liable for its
value. He is asked to describe whatever was destroyed and
then he is made to take an oath about that description and
what he loaned on security for it. "Then people of
discernment evaluate the description. If the pledge was
worth more than what the broker loaned, the pledger takes
the extra. If the assessed value of the pledge is less
than what he was loaned, the pledger is made to take an
oath as to what the broker loaned and he does not have to
pay the extra which the broker loaned above the assessed
value of the pledge. If the pledger refuses to take an
oath, he has to give the broker the extra above the
assessed value of the pledge. If the broker says that he
doesn't know the value of the pledge, the pledger is made
to take an oath on the description of the pledge and that
is his if he brings a matter which is not disapproved of."
Malik said, "All this applies when the broker takes the
pledge and does not put it in the hands of another."
Yahya said that he heard Malik speak about two men who
had a pledge between them. One of them undertook to sell
his pledge, and the other one had asked him to wait a year
for his due. He said, "If it is possible to divide the
pledge, and the due of the one who asked him to wait will
not be decreased, half the pledge which is between them is
sold for him and he is given his due. If it is feared that
his right will be decreased, all the pledge is sold, and
the one who undertook to sell his pledge is given his due
from that. If the one who asked him to wait for his due is
pleased in himself, half of the price is paid to the
pledger. If not, the pledgee is made to take an oath that
he only asked him to wait so that he could transfer my
pledge to me in its form.' Then he is given his due
immediately."
Yahya said that he heard Malik say about a slave whose
master had pledged him and the slave had property of his
own, "The property of the slave is not part of the pledge
unless the broker stipulates that."
Yahya said that he heard Malik speak about someone who
pledged goods as security for a loan, and they perished
with the broker. The one who took out the loan confirmed
its specification. They agreed on the amount of the loan,
but challenged each other about the value of the pledge,
the pledger saying that it had been worth twenty dinars,
whilst the broker said that it had been worth only ten,
and that the amount loaned on security was twenty dinars.
Malik said, "It is said to the one in whose hand the
pledge is, 'describe it.' If he describes it he is made to
take an oath on it and then the people of experience
evaluate that description. If the value is more than what
was loaned on security for it, it is said to the broker,
'Return the rest of his due to the pledger.' If the value
is less than what was loaned on security for it, the
broker takes the rest of his due from the pledger. If the
value is the exact amount of the loan, the pledge is
compensated for by the loan."
Yahya said that he heard Malik say, "What is done in
our community about two men who have a dispute about an
amount of money loaned on the security of a pledge - the
pledger claiming that he pledged it for ten dinars and the
broker insisting that he took the pledge as security for
twenty dinars, and the pledge is clearly in the possession
of the broker - is that the broker is made to take an oath
when the value of the pledge is fully known. If the value
of the pledge is exactly what he swore that he had loaned
on security for it, the broker takes the pledge as his
right. He is more entitled to take precedence with an oath
since he has possession of the pledge. If the owner of the
pledge wants to give him the amount which he swore that he
was owed, he can take the pledge back. If the pledge is
worth less than the twenty dinars he loaned, then it is
said to the pledger, 'Either you give him what he has
sworn to and take your pledge back, or you swear to what
you said you pledged it for.' If the pledger takes the
oath, then what the broker has increased over the value of
the pledge will become invalid. If the pledger does not
take an oath, he must pay what the broker swore to."
Malik said, "If a pledge given on security for a loan
perishes, and both parties deny each other's rights, with
the broker who is owed the loan saying that he gave twenty
dinars, and the pledger who owes the loan saying that he
was given only ten, and with the broker who is owed the
loan saying the pledge was worth ten dinars, and the
broker who owes the loan saying it was worth twenty, then
the broker who is owed the loan is asked to describe the
pledge. If he describes it, he must take an oath on its
description. Then people with experience of it evaluate
that description. If the value of the pledge is estimated
to be more than what the broker claims it was, he takes an
oath as to what he claimed, and the pledger is given what
is over from the value of the pledge. If its value is less
than what the broker claims of it, he is made to take an
oath as to what he claims is his. Then he demands
settlement according to the actual value of the pledge.
The one who owes the loan is then made to take an oath on
the extra amount which remains owing against him to the
claimant after the price of the pledge is reached. That is
because the broker becomes a claimant against the pledger.
If he takes an oath, the rest of what the broker swore to
of what he claimed above the value of the pledge is
invalidated. If he draws back, he is bound to pay what
remains due to the broker after the value of the pledge."
Section: Judgement on Renting Animals and Going Beyond
Specified Destinations
Yahya said that he heard Malik say, "What is done in
our community about a man who rents an animal for a
journey to a specified place and then he goes beyond that
place and further, is that the owner of the animal has a
choice. If he wants to take extra rent for his animal to
cover the distance overstepped, he is given that on top of
the first rent and the animal is returned. If the owner of
the animal likes to sell the animal from the place where
he over-steps, he has the price of the animal on top of
the rent. If, however, the hirer rented the animal to go
and return and then he overstepped when he reached the
city to which he rented him, the owner of the animal only
has half the first rent. That is because half of the rent
is going, and half of it is returning. If he oversteps
with the animal, only half of the first rent is obliged
for him. Had the animal died when he reached the city to
which it was rented, the hirer would not be liable and the
renter would only have half the rent."
Malik said, "That is what is done with people who
overstep and dispute about what they took the animal for."
Malik said, "It is also like that with some one who
takes qirad-money from his companion. The owner of the
property says to him, 'Do not buy such-and-such animals or
such-and-such goods.' He names them and forbids them and
disapproves of his money being invested in them. The one
who takes the money then buys what he was forbidden. By
that, he intends to be liable for the money and take the
profit of his companion. When he does that, the owner of
the money has an option. If he wants to enter with him in
the goods according to the original stipulations between
them about the profit, he does so. If he likes, he has his
capital guaranteed against the one who took the capital
and over stepped the mark."
Malik said, "It is also like that with a man with whom
another man invests some goods. The owner of the property
orders him to buy certain goods for him which he names. He
differs, and buys with the goods something other than what
he was ordered to buy. He exceeded his orders. The owner
of the goods has an option. If he wants to take what was
bought with his property, he takes it. If he wants the
partner to be liable for his capital he has that."
Malik related to me from Ibn Shihab that Abd al-Malik
ibn Marwan gave a judgment that the rapist had to pay the
raped woman her bride-price.
Yahya said that he heard Malik say, "What is done in
our community about the man who rapes a woman, virgin or
non-virgin, if she is free, is that he must pay the
bride-price of the like of her. If she is a slave, he must
pay what he has diminished of her worth. The hadd-punishment
in such cases is applied to the rapist, and there is no
punishment applied to the raped woman. If the rapist is a
slave, that is against his master unless he wishes to
surrender him."
Section: Judgement on Consumption of Other Peoples'
Animals
Yahya said that he heard Malik say, "What is done in
our community about someone who consumed an animal without
the permission of its owner, is that he must pay its price
on the day he consumed it. He is not obliged to replace it
with a similar animal nor does he compensate the owner
with any kind of animal. He must pay its price on the day
it was consumed, and giving the value is more equitable in
compensation for animals and goods."
Yahya said that he heard Malik say about someone who
consumes some food without the permission of its owner,
"He returns to the owner a like weight of the same kind of
food. Food is in the position of gold and silver. Gold and
silver are returned with gold and silver. The animal is
not in the position of gold in that. What distinguishes
between them is the sunna and the behaviour which is in
force.
Yahya said that he heard Malik say, "If a man is
entrusted with some wealth and then trades with it for
himself and makes a profit, the profit is his because he
is responsible for the property until he returns it to its
owner. "
Yahya related to me from Malik from Zayd ibn Aslam that
the Messenger of Allah, may Allah bless him and grant him
peace, said, "If someone changes his deen - strike his
neck!"
The meaning of the statement of the Prophet, may Allah
bless him and grant him peace, in our opinion and Allah
knows best, is that "if someone changes his deen, strike
his neck!" refers to those who leave Islam for other than
it - like the heretics and their like, about whom it is
known. They are killed without being called to tawba
because their tawba is not recognised. They were hiding
their kufr and publishing their Islam, so I do not think
that one calls such people to tawba, and one does not
accept their word. As for the one who goes out of Islam to
something else and divulges it, one calls him to tawba. If
he does not turn in tawba, he is killed. If there are
people in that situation, I think that one should call
them to Islam and call them to tawba. If they turn in
tawba, that is accepted from them. If they do not turn in
tawba, they are killed. That does not refer as we see it,
and Allah knows best, to those who come out of Judaism to
Christianity or from Christianity to Judaism, nor to
someone who changes his deen from the various forms of
deen except for Islam. Whoever comes out of Islam to other
than it and divulges that, that is the one who is referred
to, and Allah knows best!
Malik related to me from Abd ar-Rahman ibn Muhammad ibn
Abdullah ibn Abd al-Qari that his father said, "A man came
to Umar ibn al-Khattab from Abu Musa al-Ashari. Umar asked
after various people, and he informed him. Then Umar
inquired, 'Do you have any recent news?' He said, 'Yes. A
man has become a kafir after his Islam.' Umar asked, 'What
have you done with him?' He said, 'We let him approach and
struck off his head.' Umar said, 'Didn't you imprison him
for three days and feed him a loaf of bread every day and
call on him to tawba that he might turn in tawba and
return to the command of Allah?' Then Umar said, 'O Allah!
I was not present and I did not order it and I am not
pleased since it has come to me!' "
Section: Judgement on Men Finding Other Men with Their
Wives
Yahya related to me from Malik from Suhayl ibn Abi
Salih as-Samman from his father from Abu Hurayra that Sad
ibn Ubada said to the Messenger of Allah, may Allah bless
him and grant him peace, "What do you think if I find a
man with my wife? Shall I grant him a respite until I
bring four witnesses?" The Messenger of Allah, may Allah
bless him and grant him peace, replied, "Yes."
Malik related to me from Yahya ibn Said from Said ibn
al-Musayyab that a Syrian man called Ibn Khaybari found a
man with his wife and killed him, or killed them both.
Muawiya ibn Abi Sufyan found it difficult to make a
decision and he wrote to Abu Musa al-Ashari to ask Ali ibn
Abi Talib for him about that. So Abu Musa asked Ali ibn
Abi Talib and AIi said to him, "Is this thing in my land?
I adjure you, you must tell me." Abu Musa explained to him
how Muawiya ibn Abi Sufyan had written him to ask Ali
about it. Ali said, "I am Abu Hasan. If he does not bring
four witnesses, then let him be completely handed over,"
(to the relatives of the murdered man).
Yahya said that Malik related from Ibn Shihab that
Sunayn Abi Jamila, a man from the Banu Sulaym, found an
abandoned child in the time of Umar ibn al-Khattab. Sunayn
took him to Umar ibn al-Khattab. He asked, "What has
induced you to take this person?" He answered, "I found
him lost, so I took him.'' Umar's advisor said to him,' 'Amir
al-Muminin! He is a man who does good." Umar inquired of
him, "Is it so?" He replied, "Yes." Umar ibn al-Khattab
said, "Go, he is free, and you have his wala' inheritance,
and we will provide for him."
Yahya said that he heard Malik say, "What is done in
our community about an abandoned child is that he is free,
and his wala' inheritance belongs to the muslims, and they
inherit from him and pay his blood money."
Section: Judgement on Attaching Paternity to Children
Yahya said from Malik from Ibn Shihab from Urwa ibn
az-Zubayr that A'isha, the wife of the Prophet, may Allah
bless him and grant him peace, said, ''Utba ibn Abi Waqqas
disclosed to his brother, Sad ibn Abi Waqqas, that he was
the father of the son of the slave-girl of Zama, and made
him promise to look after him (after his death). In the
year of the conquest, Sad took him and said, 'He is the
son of my brother. He covenanted with me about him.' Abd
ibn Zama stood up and said, 'He is my brother and the son
of my father's slave-girl. He was born on his bed.' They
went to the Messenger of Allah, may Allah bless him and
grant him peace. Sad said, 'Messenger of Allah! He is the
son of my brother, he made a covenant with me about him.'
Abd ibn Zama said, 'He is my brother and the son of my
father's slave-girl and was born on my father's bed.' The
Messenger of Allah, may Allah bless him and grant him
peace, said, 'He is yours, Abd ibn Zama.' Then the
Messenger of Allah, may Allah bless him and grant him
peace, said, 'A child belongs to the household (where he
was born) and the adulterer is stoned.' Then he told Sawda
bint Zama, 'Veil yourself from him,' since he saw in him a
resemblance to Utba ibn Abi Waqqas." A'isha added, "He did
not see her until he met Allah, the Mighty, the Majestic!"
Malik related to me from Yazid ibn Abdullah ibn al-Hadi
from Muhammad ibn Ibrahim ibn al-Harith at-Taymi from
Sulayman ibn Yasar from Abdullah ibn Abi Umayya that a
woman's husband died, and she did the idda of four months
and ten days. Then she married when she was free to marry.
She stayed with her husband for four and a half months,
then gave birth to a fully developed child. Her husband
went to Umar ibn al-Khattab and mentioned that to him, so
Umar called some of the old women of the Jahiliyya and
asked them about that. One of the women said, "I will tell
you what happened with this woman. When her husband died,
she was pregnant by him, but then the blood flowed from
her because of his death and the child became dry in her
womb. When her new husband had intercourse with her and
the water reached the child, the child moved in the womb
and grew." Umar ibn al-Khattab believed her and separated
them (until she had completed her idda). Umar said, "Only
good has reached me about you two," and he connected the
child to the first husband.
Malik related to me from Yahya ibn Said from Sulayman
ibn Yasar that Umar ibn al-Khattab used to attach the
children of the Jahiliyya to whoever claimed them in
Islam. Two men came and each of them claimed a woman's
child. Umar ibn al-Khattab summoned a person who
scrutinized features and he looked at them. The
scrutinizer said, "They both share in him." Umar ibn al-Khattab
hit him with a whip. Then he summoned the woman, and said,
"Tell me your tale." She said, "It was this one
(indicating one of the two men) who used to come to me
while I was with my people's camels. He did not leave me
until he thought and I thought that I was pregnant. Then
he left me, and blood flowed from me, and this other one
took his place. I do not know from which of them the child
is." The scrutinizer said, "Allah is greater." Umar said
to the child, "Go to whichever of them you wish."
Malik related to me that he had heard that Umar ibn al-Khattab
or Uthman ibn Affan gave a judgement about a slave woman
who misled a man about herself and said that she was free.
He married her and she bore children. It was decided that
he should ransom his children with their like of slaves.
Yahya said that he heard Malik say, "To ransom them
with their price is more equitable in this case, Allah
willing."
Section: Judgement on Inheritance of Attached Children
Yahya said that he heard Malik say, "The way of doing
things generally agreed upon in our community in the case
of a man who dies and has sons and one of them claims, 'My
father confirmed that so-and-so was his son,' is that the
relationship is not established by the testimony of one
man, and the confirmation of the one who confirmed it is
only permitted as regards his own share in the division of
his father's property. The one testified for is only given
his due from the share of the testifier."
Malik said, "An example of this is that a man dies
leaving two sons, and 600 dinars. Each of them takes 300
dinars. Then one of them testifies that his deceased
father confirmed that so-and-so was his son. The one who
testifies is obliged to give 100 dinars to the one thus
connected. This is half of the inheritance of the one
thought to be related, had he been related. If the other
confirms him, he takes the other 100 and so he completes
his right and his relationship is established. His
position is similar to that of a woman who confirms a debt
against her father or her husband and the other heirs deny
it. She must pay to the person whose debt she confirms,
the amount according to her share of the full debt, had it
been confirmed against all the heirs. If the woman
inherits an eighth, she pays the creditor an eighth of his
debt. If a daughter inherits a half, she pays the creditor
half of his debt. Whichever women confirm him, pay him
according to this.
Malik said, "If a man's testimony is in agreement with
what the woman testified to, that so-and-so had a debt
against his father, the creditor is made to take an oath
with one witness and he is given all his due. This is not
the position with women because a man's testimony is
allowed and the creditor must take an oath with the
testimony of his witness, and take all his due. If he does
not take an oath, he only takes from the inheritance of
the one who confirmed him according to his share of the
debt, because he confirmed his right and the other heirs
denied it. It is permitted for him to confirm it."
Yahya said that Malik related from Ibn Shihab from
Salim ibn Abdullah ibn Umar from his father that Umar ibn
al-Khattab said, "What's the matter with men who have
intercourse with their slave-girls and then dismiss them?
No slave-girl comes to me whose master confesses that he
has had intercourse with her but that I connect her child
to him, whether or not he has practised coitus interruptus
or stopped having intercourse with her."
Malik related to me from Nafi that Safiyya bint Abi
Ubayd informed him that Umar ibn al-Khattab said, "What is
the matter with men who have intercourse with their
slave-girls and then leave them to go? No slave-girl comes
to me whose master confesses that he has had intercourse
with her but that I connect her child to him, whether or
not he has practised coitus interruptus or left off from
intercourse with her."
Yahya said that he heard Malik say, "What is done in
our community about an umm walad who commits a crime is
that her master is liable for what she has done up to her
value. He does not have to surrender her, and he cannot be
made to bear more than her value for her crime."
Section: Judgement on Bringing Barren Land into
Cultivation
Yahya related from Malik from Hisham ibn Urwa from his
father that the Messenger of Allah, may Allah bless him
and grant him peace, said, "If anyone revives dead land,
it belongs to him, and the unjust root has no right."
Malik explained, "The unjust root is whatever is taken,
or planted without right."
Malik related to me from Ibn Shihab from Salim ibn
Abdullah from his father that Umar ibn al-Khattab said,
"Whoever revives dead land, it belongs to him."
Malik said, "That is what is done in our community."
Yahya related to me from Malik from Abdullah ibn Abi
Bakr ibn Muhammad ibn Amr ibn Hazm that he heard that the
Messenger of Allah, may Allah bless him and grant him
peace, said about the flood-channels of Mahzur and
Mudhaynib (in Madina), "Dam them systematically, so that
the water is diverted into each property in turn up to
ankle level, starting upstream."
Malik related to me from Abu'z-Zinad from al-Araj from
Abu Hurayra that the Messenger of Allah, may Allah bless
him and grant him peace, said, "Excess water is not
withheld in order to prevent herbage from growing."
Malik related to me from Abu'r-Rijal Muhammad ibn Abd
ar-Rahman from his mother Amra bint Abd ar-Rahman that she
informed him that the Messenger of Allah, may Allah bless
him and grant him peace, said, "Do not withhold the
surplus water of a well from people."
Yahya related to me from Malik from Amr ibn Yahya al-Mazini
from his father that the Messenger of Allah, may Allah
bless him and grant him peace, said, "There is no injury
nor return of injury."
Malik related to me from Ibn Shihab from al-Araj from
Abu Hurayra that the Messenger of Allah, may Allah bless
him and grant him peace, said, "No one should prevent his
neighbour from fixing a wooden peg in his wall." Then Abu
Hurayra said, "Why do I see you turning away from it? By
Allah! I shall keep on at you about it."
Malik related to me from Amr ibn Yahya al-Mazini from
his father that ad-Dahhak ibn Khalifa watered his
irrigation ditch from a large source of water. He wanted
to have it pass through the land of Muhammad ibn Maslama,
and Muhammad refused. Ad-Dahhak said to him, "Why do you
prevent me? It will benefit you. You can drink from it
first and last and it will not harm you." Muhammed refused
so ad-Dahhak spoke about it to Umar ibn al-Khattab, and
Umar ibn al-Khattab summoned Muhammad ibn Maslama and
ordered him to clear the way. Muhammad said, "No." Umar
said, "Why do you prevent your brother from what will
benefit him and is also useful for you? You will take
water from it first and last and it will not harm you."
Muhammad said, "No, by Allah!" Umar said, "By Allah, he
will pass it through, even if it is over your belly!" Umar
ordered him to allow its passage and ad-Dahhak did so.
Malik related to me from Amr ibn Yahya al-Mazini that
his father said, "There was a stream in my grand-father's
garden belonging to Abd ar-Rahman ibn Awf Abd ar-Rahman
ibn Awf wanted to transfer it to a corner of the garden
nearer to his land, and the owner of the garden prevented
him. Abd ar-Rahman ibn Awf spoke to Umar ibn al-Khattab
about it, and he gave a judgement to Abd ar-Rahman ibn Awf
that he should transfer it."
Yahya related to me from Malik that Thawr ibn Zayd ad-Dili
said, "I heard that the Messenger of Allah, may Allah
bless him and grant him peace, said, 'A house or land that
has been divided in the Jahiliyya, it is according to the
division of the Jahiliyya. A house or land which has not
been divided before the coming of Islam is divided
according to Islam.' "
Yahya said that he heard Malik speak about a man who
died and left properties in Aliya and Safila (outlying
districts of Madina). He said, "Unirrigated naturally
watered land is not in the same category as irrigated land
unless the family are satisfied with that. Unirrigated
land is only in the same category as land with a spring
when it resembles it. When the properties are in one land,
and are close together, each individual property is
evaluated and then divided between the heirs. Dwellings
and houses are in the same position."
Section: Judgement on Animals Grazing on Other People's
Crops and Animals Stolen from the Herd
Yahya related to me from Malik from Ibn Shihab from
Haram ibn Sad ibn Muhayyisa that a female camel of al-Bara
ibn Azib entered the garden of a man and it did some
damage to it. The Messenger of Allah, may Allah bless him
and grant him peace, gave a judgement that the people of
the garden were responsible for guarding it in the day,
and the owner of the animals was liable for what the
animals destroyed at night.
Malik related to me from Hisham ibn Urwa from his
father from Yahya ibn Abd ar-Rahman ibn Hatib that some
slaves of Hatib stole a she-camel belonging to a man from
the Muzayna tribe and they slaughtered it. The case was
brought before Umar ibn al-Khattab, and Umar ordered
Kathir ibn as-Salt to cut off their hands. Then Umar said
to Habib, "I think you must be starving them," and he
added, "By Allah! I will make you pay such a fine that it
will be heavy for you." He enquired of the man from the
Muzayna tribe, "What was the price of your camel?" The
Muzayni said, "By Allah, I refused to sell her for 400
dirhams.'' Umar said, ''Give him 800 dirhams."
Yahya said that he heard Malik say, "Doubling the price
is not the behaviour of our community. What people have
settled on among us is that the man is obliged to pay the
value of the camel or animal on the day he took it."
Section: Judgement on Injuries to Domestic Animals
Yahya said that he heard Malik say, "What is done in
our community about injury to a domestic animal, is that
the one who injures it must pay the amount by which he has
diminished the animal's price."
Yahya said that he heard Malik speak about a camel who
attacked a man and he feared for himself and killed it or
hamstrung it. He said, "If he has a clear proof that it
was heading for him and had attacked him, there are no
damages against him. If there is no clear proof except his
word, he is responsible for the camel."
Section: Judgement on Articles Given to Artisans to Work
On
Yahya related that he heard Malik say that if a man
gave a washer a garment to dye and he dyed it, and then
the owner of the garment said, "I did not order you to use
this dye," and the washer protested that he had done so,
then the washer was to be believed. It was the same with
the tailor and the gold-smith. They took an oath about it
unless they produced something they would not normally
have been employed to do. In that situation their
statement was not allowed and the owner of the garment had
to take an oath . If he rejected it and refused to swear,
then the dyer was made to take an oath.
Yahya said, "I heard Malik speak about a dyer who was
given a garment and he made a mistake and gave it to
another man and the one to whom he gave it wore it. He
said, 'The one who wore it has no damages against him, and
the washer pays damages to the owner of the garment. That
is when the man wears the garment which was given him
without recognizing that it is not his. If he wears it
knowing that it is not his garment, he is responsible for
it.' "
Section: Judgement on Taking On Debts and Transfers of
Debt
Yahya said that he heard Malik say, "What is done in
our community about a man who refers a creditor to another
man for the debt he owes him is that if the one referred
to goes bankrupt or dies, and does not leave enough to pay
the debt, then the creditor has nothing against the one
who referred him and the debt does not return to the first
party."
Malik said, "This is the way of doing things about
which there is no dispute in our community."
Malik said, "If a man has his debt to somebody taken on
for him by another man and then the man who took it on
dies or goes bankrupt, then whatever was taken on by him
returns to the first debtor."
Section: Judgement on Garments Bought with Defects
Yahya said that he heard Malik say, "If a man buys a
garment which has a defect, a burn or something else,
which the seller knows about and that is testified against
him or he confirms it, and the man who has bought it
causes a new tear which decreases the price of the
garment, and then he learns about the original defect, he
can return it to the seller and he is not liable for his
tearing it.
"If a man buys a garment which has a defect of a burn
or flaw, and the one who sold it to him claims that he did
not know about it, and the buyer has cut the garment or
dyed it, then the buyer has an option . If he wishes, he
can have a reduction according to what the burn or flaw
detracts from the price of the garment and he can keep the
garment, or if he wishes to pay damages for what the
cutting or dyeing has decreased of the price of the
garment and return it, he can do so.
"If the buyer has dyed the garment with a dye which
increases the value, the buyer has an option. If he
wishes, he has a reduction from the price of the garment
according to what the defect diminishes or if he wishes to
become a partner with the one who sold the garment he does
so. The price of the garment with a burn or flaw is looked
at. If the price is ten dirhams, and the amount by which
the dyeing increased the value is five dirhams, then they
are partners in the garment, each according to his share.
In this reckoning is the amount by which the dyeing
increases the price of the garment."
Section: What is Not Permitted in Giving Gifts (1)
Yahya related to us from Malik from Ibn Shihab from
Humayd ibn Abd ar-Rah man ibn Awf and from Muhammad ibn
an-Numan ibn Bashir that they related to him that an-Numan
ibn Bashir said that his father Bashir brought him to the
Messenger of Allah, may Allah bless him and grant him
peace, and said, "I have given this son of mine one of my
slaves." The Messenger of Allah, may Allah bless him and
grant him peace, said, "Have you given each of your
children the same as this?" He said, "No." The Messenger
of Allah, may Allah bless him and grant him peace, said,
"Then take the slave back."
Malik related to me from Ibn Shihab from Urwa ibn
az-Zubayr that A'isha, the wife of the Prophet, may Allah
bless him and grant him peace, said, "Abu Bakr as-Siddiq
gave me palm trees whose produce was twenty awsuq from his
property at al-Ghaba. When he was dying, he said, 'By
Allah, little daughter, there is no one I would prefer to
be wealthy after I die than you. There is no one it is
more difficult for me to see poor after I die than you. I
gave you palm-trees whose produce is twenty awsuq. Had you
cut them and taken possession of them, they would have
been yours, but today they are the property of the heirs,
and they are your two brothers and your two sisters, so
divide it according to the Book of Allah.' A'isha
continued, "I said, 'My father! By Allah, even if it had
been more, I would have left it. There is only Asma. Who
is my other sister?" Abu Bakr replied, 'What is in the
womb of Kharija? (Kharija was the wife of Abu Bakr's
'brother' from the Ansar.) I think that it is going to be
a girl.' "
Malik related to me from Ibn Shihab from Urwa ibn
az-Zubayr from Abd ar-Rahman ibn Abd al-Qari that Umar ibn
al-Khattab said, "What is wrong with men who give their
sons gifts and then keep them and if the son dies, they
say, 'My property is in my possession and I did not give
it to anyone.' But if they themselves are dying, they say,
'It belongs to my son, I gave it to him.' Whoever gives a
gift, and does not hand it over to the one to whom it was
given, the gift is invalid, and if he dies it belongs to
the heirs in general."
Section: What is Not Permitted in Giving Gifts (2)
Yahya said that he heard Malik say, "What is done in
our community about some one who gives a gift not
intending a reward is that he calls witnesses to it. It is
affirmed for the one to whom it has been given unless the
giver dies before the one to whom it was given receives
the gift."
He said, "If the giver wants to keep the gift after he
has had it witnessed, he cannot. If the recipient claims
it from him, he takes it."
Malik said, "If some one gives a gift and then
withdraws it and the recipient brings a witness to testify
for him that he was given the gift, be it goods, gold,
silver or animals, the recipient is made to take an oath.
If he refuses, the giver is made to take an oath. If he
also refuses to take an oath, he gives to the recipient
what he claims from him if he has at least one witness. If
he does not have a witness, he has nothing . "
Malik said, "If someone gives a gift not expecting
anything in return and then the recipient dies, the heirs
are in his place. If the giver dies before the recipient
has received his gift, the recipient has nothing. That is
because he was given a gift which he did not take
possession of. If the giver wants to keep it, and he has
called witnesses to the gift, he cannot do that. If the
recipient claims his right he takes it."
Malik related to me from Da'ud ibn al-Husayn from Abu
Ghatafan ibn Tarif al-Muriyi that Umar ibn al-Khattab
said, "If someone gives a gift to strengthen ties with a
relative or as sadaqa, he cannot have it returned. If some
one, however, gives a gift seeking by it favour or reward,
he has his gift and can reclaim it if he does not have
satisfaction from it."
Yahya said that he heard Malik say, "The generally
agreed-on way of doing things in our community is that if
the gift is returned to the one who gave it for
recompense, and its value has been either increased or
decreased, the one to whom it has been given gives the
owner its value on the day he received it."
Yahya said that he heard Malik say, "The way of doing
things in our community about which there is no dispute,
is that if a man gives sadaqa to his son - sadaqa which
the son takes possession of or which is in the father's
keeping and the father has had his sadaqa witnessed, he
cannot take back any of it because he cannot reclaim any
sadaqa."
Yahya said that he heard Malik say, "The generally
agreed-on way of doing things in our community in the case
of someone who gives his son a gift or grants him a gift
which is not sadaqa is that he can take it back as long as
the child does not start a debt, which people claim from
him, and which they trust him for on the strength of the
gift his father has given him. The father cannot take back
anything from the gift after debts are started against it.
"If a man gives his son or daughter something and a
woman marries the man, and she only marries him for the
wealth and the property which his father has given him and
so the father wants to take that back, or, if a man
marries a woman whose father has given her a gift and he
marries her with an increased bride-price because of the
wealth and property that her father has given, then the
father says, 'I will take that back,' then the father
cannot take back any of that from the son or daughter if
it is as I have described to you."
Malik related to me from Ibn Shihab from Abu Salama ibn
Abd ar-Rahman ibn Awf from Jabir ibn Abdullah al-Ansari
that the Messenger of Allah, may Allah bless him and grant
him peace, said, "If someone is given a life pension, for
him and his posterity, it belongs to the person to whom it
has been given. It never reverts to the one who gave it
because he gave a gift and the rules of inheritance apply
to it."
Malik related to me from Yahya ibn Said that Abd
ar-Rahman ibn al-Qasim ibn Muhammad heard Makhul ad-Dimashqi
ask al-Qasim ibn Muhammad about the life pension and what
people said about it. Al-Qasim ibn Muhammad said, "I have
only come upon people who keep to the conditions they make
about their property and what they are given."
Yahya said that he heard Malik say, "What is done in
our community is that the life pension reverts to the one
who makes it a life pension unless he says, 'It belongs to
you and your posterity.' "
Malik related to me from Nafi that Abdullah ibn Umar
inherited the house of Hafsa bint Umar. He said, "Hafsa
gave lodging to the daughter of Zayd ibn al-Khattab for as
long as she lived. When the daughter of Zayd died,
Abdullah ibn Umar took possession of the dwelling and
considered that it was his."
Malik related to me from Rabia ibn Abi Abd ar-Rahman
from Yazid, the mawla of al-Munbaith that Zayd ibn Khalid
al-Juhani said, "A man came to the Messenger of Allah, may
Allah bless him and grant him peace, and asked him about
finds. He said, 'Memorize the characteristics of the
object found, then publicise it for a year. If the owner
comes, give it to him. If not, then it is your business.'
He said, 'What about lost sheep, Messenger of Allah?' He
said, 'They are yours, your brother's or the wolf's.' He
said, 'And the lost camel?' He said, 'It's none of your
concern. It has its water and its feet. It will reach
water and eat trees until its owner finds it.' "
Malik related to me from Ayyub ibn Musa from Muawiya
ibn Abdullah ibn Badr al-Juhani that his father informed
him that he stopped with a people on the way to Syria and
he found a purse which had eighty dinars in it. He
mentioned that to Umar ibn al-Khattab. Umar said to him,
"Announce it at the doors of the mosques and mention it to
everyone who comes from Syria for a year. When a year
passes, it is your business."
Malik related to me from Nafi that a man found
something and went to Abdullah ibn Umar and said to him,
"I have found something. What do you think I should do
about it?" Abdullah ibn Umar said to him, "Publicise it!"
He said, "I have done so." He said, "Do it again." He
said, "I have done so." Abdullah said, "I do not order you
to use it. If you wished, you could have left it."
Yahya said that he heard Malik say, "What is done in
our community about a slave who finds something and uses
it before the term which is set for finds has been
reached, and that is a year, is that it is against his
person. Either his master gives the price of what his
slave has used, or he surrenders his slave to them as
compensation. If he withheld it until the term was reached
which is set for finds and he used it, it is a debt
against him which follows him and it is not against his
person and there is nothing against his master in it."
Malik related to me from Yahya ibn Said from Sulayman
ibn Yasar that Thabit ibn ad-Dahhak al-Ansari told him
that he had found a camel at Harra, so he hobbled it and
mentioned it to Umar ibn al-Khattab and Umar ordered him
to make it known three times. Thabit said to him, "That
would distract me from the running of my estate." Umar
said to him, "Then let it go where you found it."
Malik related to me from Yahya ibn Said from Said ibn
al-Musayyab that Umar ibn al-Khattab said while he was
leaning his back against the Kaba, "Whoever takes a stray
is astray."
Malik related to me that he heard Ibn Shihab say, "The
stray camels in the time of Umar ibn al-Khattab were
numerous and left alone. No one touched them until the
time of Uthman ibn Affan. He ordered that they be
publicised and then sold, and if the owner came
afterwards, he was given their price."
Malik related to me from Said ibn Amr Shurahbil ibn
Said ibn Sad ibn Ubada from his father that his father
said, ''Sad ibn Ubada went out with the Messenger of
Allah, may Allah bless him and grant him peace, in one of
his raids and his mother was dying in Madina. Someone said
to her, 'Leave a testament.' She said, 'In what shall I
leave a testament? The property is Sad's property.' Then
she died before Sad returned. When Sad ibn Ubada returned,
that was mentioned to him. Sad said,
'Messenger of Allah! Will it help her if I give sadaqa
for her?' The Messenger of Allah, may Allah bless him and
grant him peace, said, 'Yes' Sad said, 'Such-and-such a
garden is sadaqa for her,' naming the garden."
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 a man said to the
Messenger of Allah, may Allah bless him and grant him
peace, "My mother died suddenly, and I think that had she
spoken, she would have given sadaqa. Shall I give sadaqa
for her?" The Messenger of Allah, may Allah bless him and
grant him peace, said, "Yes."
Malik related to me that he heard that a man of the
Ansar from the tribe of Banu al-Harith ibn al-Khazraj,
gave sadaqa to his parents and then they died. Their son
inherited the property he had given them and it was
palm-trees. He asked the Messenger of Allah, may Allah
bless him and grant him peace, about it and he said, "You
are rewarded for your sadaqa, and take it as your
inheritance."