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 for him, he must buy out his partners so
that the slave is completely freed. If he doesn't have the
money, he partially frees him.
Malik said, "The generally agreed-on way of doing
things among us in the case of slave whose master makes a
bequest to free part of him - a third, a fourth, a half,
or any share after his death, is that only the portion of
him 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' was confirmed. That is not to be borne by
another's property unless he bequeaths within the third of
his property what remains of a lave 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
all of him is free from him, if it is within the third of
his property that he has access to, because he is not
treated in the same way 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."
Malik said, "A master who frees a slave of his and
settles his emancipation so that his testimony is
permitted, his inviolability complete, and his right to
inherit confirmed, cannot impose stipulations on him like
what he imposes on a slave about property or service, nor
get him to do anything of 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 full price of the slave justly evaluated for
him, he must give his partners their shares so 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."
Section: People who Free Slaves and Own No Other
Property
Malik related to me from Yahya ibn Said 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 other than them.
Malik related to me from Rabia ibn Abi Abd ar-Rahman
that a man in the time of Aban ibn Uthman's amirate freed
all of his slaves and did not have other property than
them. Aban ibn Uthman took charge of the slaves and they
were divided into three groups. Then he drew lots on the
basis that which ever group drew the dead man's arrow
would be free. The arrow fell to one of the thirds, and
that third was freed.
Section: Judgement on the Property of Slaves when Set
Free
Malik related to me that he heard Ibn Shihab say, "The
precedent of the sunna is that when a slave is freed, his
property follows him."
Malik said, "One thing which makes clear that the
property of a slave follows him when he is freed is that
when the contract (mukatab) is written for his freedom,
his property follows him even if he did not stipulate it.
That is because the bond of kitaba is the bond of wala'
when it is complete. The property of a slave and a mukatab
is not treated in the same way as any children they may
have. Their children are only treated in the same way as
their own slaves, not in the same way as their property.
This is because the sunna, in 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 and his children do not follow him."
Malik said, "One thing which makes that clear is that
when a slave or a mukatab are 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 inclusions of his property, his children
are not included in his property."
Malik said, "Another thing which makes it clear is that
when a slave does injure some one, he and his property are
taken, and his children are not taken."
Section: Freeing Slaves who are Umm Walad and a General
Chapter on Freeing
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 ."
Malik related to me that he had heard that a slave-girl
came to Umar ibn al-Khattab (who had been beaten by her
master with a red hot iron) 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 freed
while he has a debt against him which exceeds his
property. A boy is not allowed to be set free until he has
reached puberty. The young person whose affairs are
managed cannot set free in his property, even when he
reaches puberty, until he manages his property."
Section: Slaves Permitted to be Freed when a Slave must
be Freed by Obligation
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 lost. I asked her about it and she said that a wolf
had eaten it, so I became angry and I am one of the
children of Adam, so I struck her on the face. As it
happens, I have to set a slave free, 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 said, 'Who am I?' She said, 'You are the
Messenger of Allah.' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'Free her.' "
Malik related to me from Ibn Shihab from Ubaydullah ibn
Abdullah ibn Utba ibn Masud 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 a slave free who is a mumina. If you
think that she is mumina, I will free her." 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." "Do you testify that Muhammad is
the Messenger of Allah?" She said, "Yes." "Are you certain
about the rising after death?" She said, "Yes." The
Messenger of Allah, may Allah bless him and grant him
peace, said, "Free her."
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 illegitimate child to fulfil
that obligation. Abu Hurayra said, "Yes. That will give
satisfaction for him."
Malik related to me that he had heard that Fadala ibn
Ubayd al-Ansari who was 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."
Section: Slaves Not Permitted to be Freed when a Slave
must be Freed by Obligation
Malik related to me that he had heard that Abdullah ibn
Umar was asked whether a slave could be bought on the
specific condition that it was to be used to fulfil 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 if he
does that, whatever he buys is not completely a slave
because 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, said in His Book, 'either as a favour then or by
ransom,' (Sura 47 ayat 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 mumin
slave for them."
Malik said, "It is like that in feeding poor people for
kaffara. One must only feed muslims and one does not feed
anyone outside of the deen of Islam."
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 said to al-Qasim
ibn Muhammad, 'Will it help her if I free a slave for
her?' Al-Qasim replied, 'Sad ibn Ubada said to the
Messenger of Allah, may Allah bless him and grant him
peace, 'My mother 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, said "Yes." "'
Malik related to me that Yahya ibn Said 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."
Section: The Excellence of Freeing Slaves, Freeing
Adulteresses and Illegitimate Children
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."
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 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 didn't 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 the 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.' "
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, "Don't let that hinder you, for the
wala' only belongs to the one who sets free."
Malik related to me from Yahya ibn Said 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 Said
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."
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'.
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, that 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'. For
if it was permitted to the master to stipulate that for
him and to give him permission to give the wala' to
whomever he liked, that would be a gift.
Section: Slaves Attracting the Wala' When Set Free
Malik related to me from Rabia 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 took 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 Said ibn al-Musayyab
was asked who had the wala' of the children whom a slave
had by a free woman. Said 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, "That is like the child of a woman who is a
mawla who has been divorced by lian; 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, they pay his
blood-money and his father is punished with the hadd-punishment."
Malik said, "It is like that with a free-born woman
divorced by lian. If her husband who curses her by lian
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 lian 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 lineage 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 father of the slave 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 who was set free while
she was pregnant and her husband was a slave 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
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."
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 and left 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, it is
not so. 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.
Malik related to me from Abdullah ibn Abi Bakr ibn Hazm
that his father told him that he was sitting with Aban ibn
Uthman, and 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 them from her.
Then her son died and his heirs said, "We have the wala'
of the mawali. Her son obtained them." Those of the
Juhayna said, "It is not like that. They are the mawali of
our female associate. When her child died, we have their
wala' and we inherit them." Aban ibn Uthman gave a
judgement that the people from the Juhayna tribe did
indeed have the wala' of the mawali.
Malik related to me that he had heard that Said 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 and
left children. He said, "The third remaining son inherits
the mawali. When he dies, his children and the children of
his brothers share equally in the wala' of the mawali."
Section: The Inheritance of Slaves Set Free and the Wala'
of Jews and Christians Who Set Slaves Free
Malik related to me that he had asked Ibn Shihab about
a slave who was released. He said, "He 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', and
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 he was freed before being sold, the wala'
of the freed slave went to the muslims. If the jew or
christian became muslim afterwards, the wala' did not
revert to him. "
He said, "However, if a jew or christian frees a slave
from their own deen, and then the freed one becomes muslim
before the jew or christian who freed him becomes muslim
and then the one who freed him has become muslim, his wala'
reverts to him because the wala' was confirmed for him on
the day he freed him."
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
freed him became muslim. If the freed one was already
muslim when he was freed, 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 slave went to the community
of muslims.