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Muwatta Malik Hadith Books.
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61
The Oath of Qasama
Section: Beginning With the People Seeking Blood Revenge in
the Oath
Book 44, Number 44.1.1:
Yahya related to me from Malik from Abu Layla ibn
Abdullah ibn Abd ar-Rahman ibn Sahl from Sahl ibn Abi
Hathma that some of the great men of his people informed
him that Abdullah ibn Sahl and Muhayyisa went out to
Khaybar because extreme poverty had overtaken them.
Muhayyisa returned and said that Abdullah ibn Sahl had
been killed and thrown in a shallow well or spring. The
jews came and he said, "By Allah! You have killed him."
They said, "By Allah! We have not killed him!" Then he
made for his people and mentioned that to them. Then he,
his brother Huwayyisa, who was older than him, and Abd
ar-Rahman, set out. Muhayyisa began to speak, as he had
been at Khaybar. The Messenger of Allah, may Allah bless
him and grant him peace, said to him, "The greater first,
the greater first," meaning in age. So Huwayyisa spoke and
then Muhayyisa spoke. The Messenger of Allah, may Allah
bless him and grant him peace, said, "Either they pay your
companion's blood-money or we will declare war against
them." The Messenger of Allah, may Allah bless him and
grant him peace, wrote that to them and they wrote, "By
Allah, we did not kill him!" The Messenger of Allah, may
Allah bless him and grant him peace, said to Huwayyisa,
Muhayyisa, and Abd ar-Rahman, "Do you swear and claim the
blood of your companion?" They said, "No." He said, "Shall
the jews swear to you?" They said, "But they are not
muslims." The Messenger of Allah, may Allah bless him and
grant him peace, gave blood-money from his own property,
and sent them one hundred camels to their house.
Sahl added, "A red camel among them kicked me."
Book 44, Number 44.1.2:
Yahya said from Malik from Yahya ibn Said that Bushayr
ibn Yasar informed him that Abdullah ibn Sahl al-Ansari
and Muhayyisa ibn Masud went out to Khaybar, and they
separated on their various businesses and Abdullah ibn
Sahl was killed. Muhayyisa, and his brother Huwayyisa and
Abd ar-Rahman ibn Sahl went to the Prophet, may Allah
bless him and grant him peace, and Abd ar-Rahman began to
speak before his brother. The Messenger of Allah, may
Allah bless him and grant him peace, said, "The older
first, the older first.
Therefore Huwayyisa and then Muhayyisa spoke and
mentioned the affair of Abdullah ibn Sahl. The Messenger
of Allah, may Allah bless him and grant him peace, said to
them, "Do you swear with fifty oaths and claim the
blood-money of your companion or the life of the
murderer?" They said, "Messenger of Allah, we did not see
it and we were not present." The Messenger of Allah, may
Allah bless him and grant him peace, said, "Will you
acquit the jews for fifty oaths?' They said, "Messenger of
Allah, how can we accept the oaths of a people who are
kafirun?"
Yahya ibn Said said, "Bushayr ibn Yasar claimed that
the Messenger of Allah, may Allah bless him and grant him
peace, paid the blood-money from his own property."
Malik said, "The generally agreed on way of doing
things in our community and that which I heard from
whoever I am content with, concerning the oath of qasama,
and upon which the past and present imams agree, is that
those who claim revenge begin with the oaths and swear.
The oath for revenge is only obligatory in two situations.
Either the slain person says, 'My blood is against
so-and-so,' or the relatives entitled to the blood bring a
partial proof of it that is not irrefutable against the
one who is the object of the blood-claim. This obliges
taking an oath on the part of those who claim the blood
against those who are the object of the blood-claim. With
us, swearing is only obliged in these two situations."
Malik said, "That is the sunna in which there is no
dispute with us and which is still the behaviour of the
people. The people who claim blood begin the swearings,
whether it is an intentional killing or an accident."
Malik said, "The Messenger of Allah, may Allah bless
him and grant him peace, began with Banu Harith in the
case of the killing of their kinsman murdered at Khaybar."
Malik said, "If those who make the claim swear, they
deserve the blood of their kinsman and whoever they swear
against is slain. Only one man can be killed in the qasama.
Two cannot be killed in it. Fifty men from the
blood-relatives must swear fifty oaths. If their number is
less or some of them draw back, they can repeat their
oaths, unless one of the relatives of the murdered man who
deserves blood and who is permitted to pardon it, draws
back. If one of these draws back, there is no way to
revenge."
Yahya said that Malik said, "The oaths can be made by
those of them who remain if one of them draws back who is
not permitted to pardon. If one of the blood-relatives
draws back who is permitted to pardon, even if he is only
one, more oaths can not be made after that by the
blood-relatives. If that occurs, the oaths can be on
behalf of the one against whom the claim is made. So fifty
of the men of his people swear fifty oaths. If there are
not fifty men, more oaths can be made by those of them who
already swore. If there is only the defendant, he swears
fifty oaths and is acquitted."
Yahya said that Malik said, "One distinguishes between
swearing for blood and oaths for one's rights. When a man
has a money-claim against another man, he seeks to verify
his due. When a man wants to kill another man, he does not
kill him in the midst of people. He keeps to a place away
from people. Had there only been swearing in cases where
there is a clear proof and had one acted in it as one acts
about one's rights (i.e. needing witnesses), the right of
blood retribution would have been lost and people would
have been swift to take advantage of it when they learned
of the decision on it. However, the relatives of the
murdered man were allowed to initiate swearing so that
people might restrain themselves from blood and the
murderer might beware lest he was put into a situation
like that (i.e. qasama) by the statement of the murdered
man.' "
Yahya said, "Malik said about a people of whom a
certain number are suspected of murder and the relatives
of the murdered man ask them to take oaths and they are
numerous, so they ask that each man swears fifty oaths on
his own behalf. The oaths are not divided out between them
according to their number and they are not acquitted
unless each man among them swears fifty oaths on his own
behalf."
Malik said, "This is the best I have heard about the
matter."
He said, "Swearing goes to the paternal relatives of
the slain. They are the blood-relatives who swear against
the killer and by whose swearing he is killed."
Section: Blood-Relatives Who are Permitted to Swear in
the Intentional Act
Book 44, Number 44.2.2a:
Yahya said that Malik said, "The way of doing things in
our community about which there is no dispute is that
women do not swear in the swearing for the intentional
act. If the murdered man only has female relatives, the
women have no right to swear for blood and no pardon in
murder."
Yahya said that Malik said about a man who is murdered,
"If the paternal relatives of the murdered man or his
mawali say, 'We swear and we demand our companion's
blood,' that is their right."
Malik said, "If the women want to pardon him, they
cannot do that. The paternal relatives and mawali are
entitled to do that more than them because they are the
ones who demand blood and swear for it."
Malik said, "If the paternal relatives or mawali pardon
after they demand blood and the women refuse and say, 'We
will not abandon our right against the murderer of our
companion,' the women are more entitled to that because
whoever takes retaliation is more entitled than the one
who leaves it among the women and paternal relatives when
the murder is established and killing obliged."
Malik said, "At least two claimants must swear in
murder. The oaths are repeated by them until they swear
fifty oaths, then they have the right to blood. That is
how things are done in our community."
Malik said, "When people beat a man and he dies in
their hands, they are all slain for him. If he dies after
their beating, there is swearing. If there is swearing, it
is only against one man and only he is slain. We have
never known the swearing to be against more than one man."
Malik spoke about a slave who had his hand or foot
broken and then the break mended . He said, "The one who
injured him is not obliged to pay anything. If that break
causes him loss or scar, the one who injured him must pay
according to what he diminished of the value of the
slave."
Malik said, "What is done in our community about
retaliation between slaves is that it is like retaliation
between freemen. The life of the slave-girl for the life
of the slave, and her injury for his injury. When a slave
intentionally kills a slave, the master of the murdered
slave has a choice. If he wishes, he kills him, and if he
wishes, he takes the blood-money. If he takes the
blood-money, he takes the value of his slave. If the owner
of the slave who killed wishes to give the value of the
murdered slave, he does it. If he wishes, he surrenders
his slave. If he surrenders him, he is not obliged to do
anything other than that. When the owner of the murdered
slave takes the slave who murdered and is satisifed with
him, he must not kill him. All retaliations between slaves
for cutting off of the hand and foot and such things are
dealt with in the same way as in the murder."
Malik said about a muslim slave who injures a jew or
christian, "If the master of the slave wishes to pay
blood-money for him according to the injury, he does it.
Or else he surrenders him and he is sold, and the jew or
christian is given the blood-money of the injury or all
the price of the slave if the blood-money is greater than
his price. The jew or christian is not given a muslim
slave."
Section: Swearing in Manslaughter
Book 44, Number 44.3.2b:
Yahya said that Malik said, "The way of doing things in
our community about Yahya said that Malik said, "The
procedure in swearing in manslaughter is that those who
claim blood swear and it becomes due by their swearing.
They swear fifty oaths, and there is blood-money for them
according to the division of their inheritances. If it is
not possible to divide up the oaths which they swear
between them evenly, one looks to the one who has most of
those oaths against him, and that oath is obliged against
him."
Malik said, "If the slain man only has female heirs,
they swear and take the blood-money. If he only has one
male heir, he swears fifty oaths and takes the
blood-money. That is only in the accidental killing, not
in the intentional one."
Section: Inheritance in Cases of Qasama
Book 44, Number 44.4.2c:
Yahya said that Malik said, "When the relatives of the
deceased accept the blood-money then it is inherited
according to the Book of Allah. Daughters of the dead man
inherit and so do sisters, and whichever women would
inherit from him ordinarily.
If the women do not take all his inheritance, then what
remains goes to the agnatic relations who most deserve to
inherit from him in conjunction with the women."
Malik said, "When one of the heirs of a man killed by
mistake attempts to take his due from the blood-money
while his companions are absent, he may not do that, and
he has no right to any of the blood-money, however large
or small, unless the qasama has been completed by him. If
he swears fifty oaths then he has the right to his portion
of the blood-money. That is because the blood-money is not
established as due without there being fifty oaths, and
the blood-money is not established as due unless the
responsibility for the blood is established. If any one of
the heirs comes after that he swears a number of the oaths
commensurate with his fraction of the inheritance and
takes his right until all the heirs exact their complete
right. If a maternal uncle comes he has one sixth and must
swear one sixth of the fifty oaths. So whoever swears may
take his due from the blood-money and whoever abstains
annuls his right. If one of the heirs is absent or is a
child who has not reached puberty, those who are present
swear fifty oaths and if the one who was absent comes
after that or the child reaches puberty, they swear. and
they swear according to their due of the blood-money and
according to their shares of inheritance from it."
Yahya said that Malik said, "This is the best I have
heard on the matter."
Section: Swearing for Blood-Revenge in Cases Involving
Slaves
Book 44, Number 44.5.2d:
Yahya said that Malik said, "What is done in our
community about slaves is that when a slave is struck
intentionally or accidentally and the master brings a
witness, he swears with his witness one oath and then he
has the value of the slave. There is no swearing for
revenge in slaves, accidentally or intentionally, and I
have not heard any of the people of knowledge say that
there was."
Malik said, "If a slave is killed intentionally or
accidentally, the master of the slave who is slain has no
swearing or oath. The master cannot demand his right
except with a fair proof or a witness if he swears with
one witness."
Yahya said that Malik said, "This is the best of what I
have heard on the matter.''
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Muwatta Malik Hadith Links:
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The
Times of Prayer
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Forgetfulness
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5.
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6.
Prayer
in Ramadan
7.
Tahajjud
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in Congregation
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Shortening
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The
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Asking
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The
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Qur'an 16.
Burials
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Vows
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Animals
24.
Slaughtering
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25.
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The
'Aqiqa
27.
Fara'id
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Marriage
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30.
Suckling
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Business
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Qirad
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Sharecropping
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35.
Pre-emption
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36.
Judgments
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Wills
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38.
Setting
Free and Wala'
39.
The
Mukatab
40.
Hudud
41.
The
Mudabbar
42.
Drinks
43.
Blood-Money
44.
The
Oath of Qasama
45.
Madina
46.
The
Decree
47.
Good
Character
48.
Dress
49.
The Description of the Prophet, may Allah Bless Him and Grant Him Peace
50.
The
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General
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55.
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The
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The
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Allah Bless Him and Grant
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