كتاب الأقضيةJudgements

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."

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).

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."

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."

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."

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."

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."

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."

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."

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!' "

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."

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."

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."

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."

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."

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."

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.' "

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."

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."

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."

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."