كتاب المكاتبThe Mukatab

Malik related to me from Nafi that Abdullah ibn Umar said, "A

mukatab is a slave as long as any of his kitaba remains to be paid."

Malik related to me that he had heard that Urwa ibn az-Zubayr and

Sulayman ibn Yasar said, "The mukatab is a slave as long as any of his

kitaba remains to be paid."

Malik said, "This is my opinion

as well."

Malik said, "If a mukatab dies and leaves more

property than what remains to be paid of his kitaba and he has

children who were born during the time of his kitaba or whose kitaba

has been written as well, they inherit any property that remains after

the kitaba has been paid."

Malik related to me from Humayd ibn Qays al-Makki that a son of

al-Mutawakkil had a mukatab who died at Makka and left (enough to pay)

the rest of his kitaba and he owed some debts to people. He also left

a daughter. The governor of Makka was not certain about how to judge

in the case, so he wrote to Abd al-Malik ibn Marwan to ask him about

it. Abd al-Malik wrote to him, "Begin with the debts owed to people,

and then pay what remains of his kitaba. Then divide what remains of

the property between the daughter and the master."

Malik

said, "What is done among us is that the master of a slave does not

have to give his slave a kitaba if he asks for it. I have not heard of

any of the Imams forcing a man to give a kitaba to his slave. I heard

that one of the people of knowledge, when someone asked about that and

mentioned that Allah the Blessed, the Exalted, said, 'Give them their

kitaba, if you know some good in them' (Sura 24 ayat 33) recited these

two ayats, 'When you are free of the state of ihram, then hunt for

game.' (Sura 5 ayat 3) 'When the prayer is finished, scatter in the

land and seek Allah's favour.' " (Sura 62 ayat 10)

Malik

commented, "It is a way of doing things for which Allah, the Mighty,

the Majestic, has given permission to people, and it is not obligatory

for them." Malik said, "I heard one of the people of knowledge say

about the word of Allah, the Blessed, the Exalted, 'Give them of the

wealth which Allah has given you,' that it meant that a man give his

slave a kitaba and then reduce the end of his kitaba for him by some

specific amount."

Malik said, "This is what I have heard from

the people of knowledge and what I see people doing here."

Malik said, "I have heard that Abdullah ibn Umar gave one of his

slaves his kitaba for 35,000 dirhams, and then reduced the end of his

kitaba by 5,000 dirhams."

Malik said, "What is done among us

is that when a master gives a mukatab his kitaba, the mukatab's

property goes with him but his children do not go with him unless he

stipulates that in his kitaba."

Yahya said, "I heard Malik

say that if a mukatab whose master had given him a kitaba had a slave-

girl who was pregnant by him, and neither he nor his master knew that

on the day he was given his kitaba, the child did not follow him

because he was not included in the kitaba. He belonged to the master.

As for the slave-girl, she belonged to the mukatab because she was his

property."

Malik said that if a man and his wife's son (by

another husband) inherited a mukatab from the wife and the mukatab

died before he had completed his kitaba, they divided his inheritance

between them according to the Book of Allah. If the slave paid his

kitaba and then died, his inheritance went to the son of the woman,

and the husband had nothing of his inheritance.

Malik said

that if a mukatab gave his own slave a kitaba, the situation was

looked at. If he wanted to do his slave a favour and it was obvious by

his making it easy for him, that was not permitted. If he was giving

him a kitaba from desire to find money to pay off his own kitaba, that

was permitted for him.

Malik said that if a man had

intercourse with a mukataba of his and she became pregnant by him, she

had an option. If she liked she could be an umm walad. If she wished,

she could confirm her kitaba. If she did not conceive, she still had

her kitaba.

Malik said, "The generally agreed on way of doing

things among us about a slave who is owned by two men is that one of

them does not give a kitaba for his share, whether or not his

companion gives him permission to do so, unless they both write the

kitaba together, because that alone would effect setting him free. If

the slave were to fulfil what he had agreed on to free half of

himself, and then the one who had given a kitaba for half of him was

not obliged to complete his setting free, that would be in opposition

to the words of the Messenger of Allah, may Allah bless him and grant

him peace. 'If someone frees his share in 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 said, "If he is not aware of that until the mukatab

has met the terms or before he has met them the owner who has written

him the kitaba returns what he has taken from the mukatab to him, and

then he and his partner divide him according to their original shares

and the kitaba is invalid. He is the slave of both of them in his

original state."

Malik spoke about a mukatab who was owned by

two men and one of them granted him a delay in the payment of the

right which he was owed, and the other refused to defer it, and so the

one who refused to defer the payment exacted his part of the due.

Malik said that if the mukatab then died and left property which did

not complete his kitaba, "They divide it according to what they are

still owed by him. Each of them takes according to his share. If the

mukatab leaves more than his kitaba, each of them takes what remains

to them of the kitaba, and what remains after that is divided equally

between them. If the mukatab is unable to pay his kitaba fully and the

one who did not allow him to defer his payment has exacted more than

his associate did, the slave is still divided equally between them,

and he does not return to his associates the excess of what he has

exacted, because he only exacted his right with the permission of his

associate. If one of them remits what is owed to him and then his

associate exacts part of what he is owed by him and then the mukatab

is unable to pay, he belongs to both of them. And the one who has

exacted something does not return anything because he only demanded

what he was owed. That is like the debt of two men in one writing

against one man. One of them grants him time to pay and the other is

greedy and exacts his due. Then the debtor goes bankrupt. The one who

exacted his due does not have to return any of what he took."

Malik said, "The generally agreed on way of doing things among us

is that when slaves write their kitaba together in one kitaba, and

some are responsible for others, and they are not reduced anything by

the death of one of the responsible ones, and then one of them says,

'I can't do it,' and gives up, his companions can use him in whatever

work he can do and they help each other with that in their kitaba

until they are freed, if they are freed, or remain slaves if they

remain slaves."

Malik said, "The generally agreed on way of

doing things among us is that when a master gives a slave his kitaba,

it is not permitted for the master to let anyone assume the

responsibility for the kitaba of his slave if the slave dies or is

incapable. This is not part of the sunna of the muslims. That is

because when a man assumes responsibility to the master of a mukatab

for what the mukatab owes of his kitaba, and then the master of the

mukatab pursues that from the one who assumes the responsibility, he

takes his money falsely. It is not as if he is buying the mukatab, so

that what he gives is part of the price of something that is his, and

neither is the mukatab being freed so that the price established for

him buys his inviolability as a free man. If the mukatab is unable to

meet the payments he reverts to his master and is his slave. That is

because kitaba is not a fixed debt which can be assumed by the master

of the mukatab. It is something which, when it is paid by the mukatab,

sets him free. If the mukatab dies and has a debt, his master is not

one of the creditors for what remains unpaid of the kitaba. The

creditors have precedence over the master. If the mukatab cannot meet

the payments, and he owes debts to people, he reverts to being a slave

owned by his master and the debts to the people are the liability of

the mukatab. The creditors do not enter with the master into any share

of the price of his person."

Malik said, "When people are

written together in one kitaba and there is no kinship between them by

which they inherit from each other, and some of them are responsible

for others, then none of them are freed before the others until all

the kitaba has been paid. If one of them dies and leaves property and

it is more than all of what is against them, it pays all that is

against them . The excess of the property goes to the master, and none

of those who have been written in the kitaba with the deceased have

any of the excess. The master's claims are overshadowed by their

claims for the portions which remain against them of the kitaba which

can be fulfilled from the property of the deceased, because the

deceased had assumed their responsibility and they must use his

property to pay for their freedom. If the deceased mukatab has a free

child not born in kitaba and who was not written in the kitaba, it

does not inherit from him because the mukatab was not freed until he

died."

Malik related to me that he heard that Umm Salama, the wife of

the Prophet, may Allah bless him and grant him peace, made a

settlement with her mukatab for an agreed amount of gold and silver.

Malik said, "The generally agreed on way of doing things

among us in the case of a mukatab who is shared by two partners, is

that one of them cannot make a settlement with him for an agreed price

according to his portion without the consent of his partner. That is

because the slave and his property are owned by both of them, and so

one of them is not permitted to take any of the property except with

the consent of his partner. If one of them settled with the mukatab

and his partner did not, and he took the agreed price, and then the

mukatab died while he had property or was unable to pay, the one who

settled would not have anything of the mukatab's property and he could

not return that for which he made settlement so that his right to the

slave's person would return to him. However, when someone settles with

a mukatab with the permission of his partner and then the mukatab is

unable to pay, it is preferable that the one who broke with him return

what he has taken from the mukatab for the severance and he can have

back his portion of the mukatab. He can do that. If the mukatab dies

and leaves property, the partner who has kept hold of the kitaba is

paid in full the amount of the kitaba which remains to him against the

mukatab from the mukatab's property. Then what remains of property of

the mukatab is between the partner who broke with him and his partner,

according to their shares in the mukatab. If one of the partners

breaks off with him and the other keeps the kitaba, and the mukatab is

unable to pay, it is said to the partner who settled with him, 'If you

wish to give your partner half of what you took so the slave is

divided between you, then do so. If you refuse, then all of the slave

belongs to the one who held on to possession of the slave.' "

Malik spoke about a mukatab who was shared between two men and one of

them made a settlement with him with the permission of his partner.

Then the one who retained possession of the slave demanded the like of

that for which his partner had settled or more than that and the

mukatab could not pay it. He said, "The mukatab is shared between them

because the man has only demanded what is owed to him. If he demands

less than what the one who settled with him took and the mukatab can

not manage that, and the one who settled with him prefers to return to

his partner half of what he took so the slave is divided in halves

between them, he can do that. If he refuses then all of the slave

belongs to the one who did not settle with him. If the mukatab dies

and leaves property, and the one who settled with him prefers to

return to his companion half of what he has taken so the inheritance

is divided between them, he can do that. If the one who has kept the

kitaba takes the like of what the one who has settled with him took,

or more, the inheritance is between them according to their shares in

the slave because he is only taking his right."

Malik spoke

about a mukatab who was shared between two men and one of them made a

settlement with him for half of what was due to him with the

permission of his partner, and then the one who retained possession of

the slave took less than what his partner settled with him for and the

mukatab was unable to pay. He said, "If the one who made a settlement

with the slave prefers to return half of what he was awarded to his

partner, the slave is divided between them. If he refuses to return

it, the one who retained possession has the portion of the share for

which his partner made a settlement with the mukatab."

Malik

said, "The explanation of that is that the slave is divided in two

halves between them. They write him a kitaba together and then one of

them makes a settlement with the mukatab for half his due with the

permission of his partner. That is a fourth of all the slave. Then the

mukatab is unable to continue, so it is said to the one who settled

with him, 'If you wish, return to your partner half of what you were

awarded and the slave is divided equally between you.' If he refuses,

the one who held to the kitaba takes in full the fourth of his partner

for which he made settlement with the mukatab. He had half the slave,

so that now gives him three-fourths of the slave. The one who broke

off has a fourth of the slave because he refused to return the

equivalent of the fourth share for which he settled."

Malik

spoke about a mukatab whose master made a settlement with him and set

him free and what remained of his severance was written against him as

debt, then the mukatab died and people had debts against him. He said,

"His master does not share with the creditors because of what he is

owed from the severance. The creditors begin first."

Malik

said, "A mukatab cannot break with his master when he owes debts to

people. He would be set free and have nothing because the people who

hold the debts are more entitled to his property than his master. That

is not permitted for him."

Malik said, "According to the way

things are done among us, there is no harm if a man gives a kitaba to

his slave and settles with him for gold and reduces what he is owed of

the kitaba provided that only the gold is paid immediately. Whoever

disapproves of that does so because he puts it in the category of a

debt which a man has against another man for a set term. He gives him

a reduction and he pays it immediately. This is not like that debt.

The breaking of the mukatab with his master is dependent on his giving

money to speed up the setting free. Inheritance, testimony and the

hudud are obliged for him and the inviolability of being set free is

established for him. He is not buying dirhams for dirhams or gold for

gold. Rather it is like a man who having said to his slave, 'Bring me

such-and-such an amount of dinars and you are free', then reduces that

for him, saying, 'If you bring me less than that, you are free.' That

is not a fixed debt. Had it been a fixed debt, the master would have

shared with the creditors of the mukatab when he died or went

bankrupt. His claim on the property of the mukatab would join theirs."

Malik said, "The best of what I have heard about a mukatab who

injures a man so that blood-money must be paid, is that if the mukatab

can pay the blood-money for the injury with his kitaba, he does so,

and it is against his kitaba. If he cannot do that, and he cannot pay

his kitaba because he must pay the blood-money of that injury before

the kitaba, and he cannot pay the blood-money of that injury, then his

master has an option. If he prefers to pay the blood-money of that

injury, he does so and keeps his slave and he becomes an owned slave.

If he wishes to surrender the slave to the injured, he surrenders him.

The master does not have to do more than surrender his slave."

Malik spoke about people who were in a general kitaba and one of

them caused an injury which entailed blood-money. He said, "If any of

them does an injury involving blood-money, he and those who are with

him in the kitaba are asked to pay all the blood-money of that injury.

If they pay, they are confirmed in their kitaba. If they do not pay,

and they are incapable then their master has an option. If he wishes,

he can pay all the blood-money of that injury and all the slaves

revert to him. If he wishes, he can surrender the one who did the

injury alone and all the others revert to being his slaves since they

could not pay the blood-money of the injury which their companion

caused."

Malik said, "The way of doing things about which

there is no dispute among us, is that when a mukatab is injured in

some way which entails blood-money or one of the mukatab's children

who is written with him in the kitaba is injured, their blood-money is

the blood-money of slaves of their value, and what is appointed to

them as their blood-money is paid to the master who has the kitaba and

he reckons that for the mukatab at the end of his kitaba and there is

a reduction for the blood-money that the master has taken for the

injury."

Malik said, "The explanation of that is say, for

example, he has written his kitaba for three thousand dirhams and the

blood-money taken by the master for his injury is one thousand

dirhams. When the mukatab has paid his master two thousand dirhams he

is free. If what remains of his kitaba is one thousand dirhams and the

blood-money for his injury is one thousand dirhams, he is free

straightaway. If the blood-money of the injury is more than what

remains of the kitaba, the master of the mukatab takes what remains of

his kitaba and frees him. What remains after the payment of the kitaba

belongs to the mukatab. One must not pay the mukatab any of the blood-

money of his injury in case he might consume it and use it up. If he

could not pay his kitaba completely he would then return to his master

one eyed, with a hand cut off, or crippled in body. His master only

wrote his kitaba against his property and earnings, and he did not

write his kitaba so that he would take the blood-money for what

happened to his child or to himself and use it up and consume it. One

pays the blood-money of injuries to a mukatab and his children who are

born in his kitaba, or their kitaba is written, to the master and he

takes it into account for him at the end of his kitaba."

Malik said, "The best of what is said about a man who buys the

mukatab of a man is that if the man wrote the slave's kitaba for

dinars or dirhams, he does not sell him unless it is for merchandise

which is paid immediately and not deferred, because if it is deferred,

it would be a debt for a debt. A debt for a debt is forbidden."

He said, "If the master gives a mukatab his kitaba for certain

merchandise of camels, cattle, sheep, or slaves, it is more correct

that the buyer buy him for gold, silver, or different goods than the

ones his master wrote the kitaba for, and that must be paid

immediately, not deferred."

Malik said, "The best of what I

have heard about a mukatab when he is sold is that he is more entitled

to buy his kitaba than the one who buys him if he can pay his master

the price for which he was sold in cash. That is because his buying

himself is his freedom, and freedom has priority over what bequests

accompany it. If one of those who have written the kitaba for the

mukatab sells his portion of him, so that a half, a third, a fourth,

or whatever share of the mukatab is sold, the mukatab does not have

the right of pre-emption in what is sold of him. That is because it is

like the severance of a partner, and a partner can only make a

settlement for a partner of the one who is mukatab with the permission

of his partners because what is sold of him does not give him complete

rights as a free man and his property is barred from him, and by

buying part of himself, it is feared that he will become incapable of

completing payment because of what he had to spend. That is not like

the mukatab buying himself completely unless whoever has some of the

kitaba remaining due to him gives him permission. If they give him

permission, he is more entitled to what is sold of him."

Malik said, "Selling one of the instalments of a mukatab is not halal.

That is because it Is an uncertain transaction. If the mukatab cannot

pay it, what he owes is nullified. If he dies or goes bankrupt and he

owes debts to people, then the person who bought his instalment does

not take any of his portion with the creditors. The person who buys

one of the instalments of the mukatab is in the position of the master

of the mukatab. The master of the mukatab does not have a share with

the creditors of the mukatab for what he is owed of the kitaba of his

slave. It is also like that with the kharaj, (a set amount deducted

daily from the slave against his earnings), which accumulates for a

master from the earnings of his slave. The creditors of his slave do

not allow him a share for what has accumulated for him from those

deductions."

Malik said, "There is no harm in a mukatab

paying off his kitaba with coin or merchandise other than the

merchandise for which he wrote his kitaba if it is identical with it,

on time (for the instalment) or delayed. "

Malik said that if

a mukatab died and left an umm walad and small children by her or by

someone else and they could not work and it was feared that they would

be unable to fulfil their kitaba, the umm walad of the father was sold

if her price would pay all the kitaba for them, whether or not she was

their mother. They were paid for and set free because their father did

not forbid her sale if he feared that he would be unable to complete

his kitaba. If her price would not pay for them and neither she nor

they could work, they all reverted to being slaves of the master.

Malik said, "What is done among us in the case of a person who

buys the kitaba of a mukatab, and then the mukatab dies before he has

paid his kitaba, is that the person who bought the kitaba inherits

from him. If, rather than dying, the mukatab cannot pay, the buyer has

his person. If the mukatab pays his kitaba to the person who bought

him and he is freed, his wala' goes to the person who wrote the kitaba

and the person who bought his kitaba does not have any of it."

Malik related to me that he heard that Urwa ibn az-Zubayr and

Sulayman ibn Yasar when asked whether the sons of a man, who had a

kitaba written for himself and his children and then died, worked for

the kitaba of their father or were slaves, said, "They work for the

kitaba of their father and they have no reduction at all for the death

of their father."

Malik said, "If they are small and unable

to work, one does not wait for them to grow up and they are slaves of

their father's master unless the mukatab has left what will pay their

instalments for them until they can work. If there is enough to pay

for them in what he has left, that is paid for on their behalf and

they are left in their condition until they can work, and then if they

pay, they are free. If they cannot do it, they are slaves."

Malik spoke about a mukatab who died and left property which was not

enough to pay his kitaba, and he also left a child with him in his

kitaba and an umm walad, and the umm walad wanted to work for them. He

said, "The money is paid to her if she is trustworthy with it and

strong enough to work. If she is not strong enough to work and not

trustworthy with property, she is not given any of it and she and the

children of the mukatab revert to being slaves of the master of the

mukatab."

Malik said, "If people are written together in one

kitaba and there is no kinship between them, and some of them are

incapable and others work until they are all set free, those who

worked can claim from those who were unable, the portion of what they

paid for them because some of them assumed the responsibility for

others."

Malik related to me that he heard Rabia ibn Abi Abd ar-Rahman and

others mention that al-Furafisa ibn Umar al-Hanafi had a mukatab who

offered to pay him all of his kitaba that he owed. Al-Furafisa refused

to accept it and the mukatab went to Marwan ibn al-Hakam who was the

amir of Madina and brought up the matter. Marwan summoned al-Furafisa

and told him to accept. He refused. Marwan then ordered that the

payment be taken from the mukatab and placed in the treasury. He said

to the mukatab "Go, you are free." When al-Furafisa saw that, he took

the money.

Malik said, "What is done among us when a mukatab

pays all the instalments he owes before their term, is that it is

permitted to him. The master cannot refuse him that. That is because

payment removes every condition from the mukatab as well as service

and travel. The setting free of a man is not complete while he has any

remaining slavery, and neither would his inviolability as a free man

be complete and his testimony permitted and inheritance obliged and

such things in that situation. His master must not make any

stipulation of service on him after he has been set free."

Malik said that it was permitted for a mukatab who became extremely

ill and wanted to pay his master all his instalments because his heirs

who were free would then inherit from him and he had no children with

him in his kitaba, to do so, because by that he completed his

inviolability as a free man, his testimony was permitted, and his

admission of what he owed of debts to people was permitted. His

bequest was permitted as well. His master could not refuse him that by

saying, "He is escaping from me with his property."

Malik related to me that he had heard that Said ibn al-Musayyab

was asked about a mukatab who was shared between two men. One of them

freed his portion and then the mukatab died and left a lot of money.

Said replied, "The one who kept his kitaba is paid what remains due to

him, and then they divide what is left between them both equally."

Malik said, "When a mukatab who fulfils his kitaba and

becomes free dies, he is inherited from by the people who wrote his

kitaba and their children and paternal relations - whoever is most

deserving."

He said, "This is also for whoever is set free

when he dies after being set free - his inheritance is for the nearest

people to him of children or paternal relations who inherit by means

of the wala'."

Malik said, "Brothers, written together in the

same kitaba, are in the same position as children to each other when

none of them have children written in the kitaba or born in the

kitaba. When one of them dies and leaves property, he pays for them

all that is against them of their kitaba and sets them free. The money

left over after that goes to his children rather than his brothers."

Malik spoke to me about a man who wrote a kitaba for his slave

for gold or silver and stipulated against him in his kitaba a journey,

service, sacrifice or similar, which he specified by its name, and

then the mukatab was able to pay all his instalments before the end of

the term.

He said, "If he pays all his instalments and he is

set free and his inviolability as a free man is complete, but he still

has this condition to fulfil, the condition is examined, and whatever

involves his person in it, like service or a journey etc., is removed

from him and his master has nothing in it. Whatever there is of

sacrifice, clothing, or anything that he must pay, that is in the

position of dinars and dirhams, and is valued and he pays it along

with his instalments, and he is not free until he has paid that along

with his instalments."

Malik said, "The generally agreed-on

way of doing things among us about which there is no dispute, is that

a mukatab is in the same position as a slave whom his master will free

after a service of ten years. If the master who will free him dies

before ten years, what remains of his service goes to his heirs and

his wala' goes to the one who contracted to free him and to his male

children or paternal relations."

Malik spoke about a man who

stipulated against his mukatab that he could not travel, marry, or

leave his land without his permission, and that if he did so without

his permission it was in his power to cancel the kitaba. He said, "If

the mukatab does any of these things it is not in the man's power to

cancel the kitaba. Let the master put that before the Sultan. The

mukatab, however, should not marry, travel, or leave the land of his

master without his permission, whether or not he stipulates that. That

is because the man may write a kitaba for his slave for 100 dinars and

the slave may have 1000 dinars or more than that. He goes off and

marries a woman and pays her bride-price which sweeps away his money

and then he cannot pay. He reverts to his master as a slave who has no

property. Or else he may travel and his instalments fall due while he

is away. He cannot do that and kitaba is not to be based on that. That

is in the hand of his master. If he wishes, he gives him permission in

that. If he wishes, he refuses it."

Malik said, "When a mukatab sets his own slaves free, it is only

permitted for a mukatab to set his own slaves free with the consent of

his master. If his master gives his consent and the mukatab sets his

slave free, his wala' goes to the mukatab . If the mukatab then dies

before he has been set free himself, the wala' of the freed slave goes

to the master of the mukatab. If the freed one dies before the mukatab

has been set free, the master of the mukatab inherits from him."

Malik said, "It is like that also when a mukatab gives his slave a

kitaba and his mukatab is set free before he is himself. The wala'

goes to the master of the mukatab as long as he is not free. If this

one who wrote the kitaba is set free, then the wala' of his mukatab

who was freed before him reverts to him. If the first mukatab dies

before he pays, or he cannot pay his kitaba and he has free children,

they do not inherit the wala' of their father's mukatab because the

wala' has not been established for their father and he does not have

the wala' until he is free."

Malik spoke about a mukatab who

was shared between two men and one of them forewent what the mukatab

owed him and the other insisted on his due. Then the mukatab died and

left property.

Malik said, "The one who did not abandon any

of what he was owed, is paid in full. Then the property is divided

between them both just as if a slave had died because what the first

one did was not setting him free. He only abandoned a debt that was

owed to him ."

Malik said, "One clarification of that is that

when a man dies and leaves a mukatab and he also leaves male and

female children and one of the children frees his portion of the

mukatab, that does not establish any of the wala' for him. Had it been

a true setting free, the wala' would have been established for

whichever men and women freed him."

Malik said, "Another

clarification of that is that if one of them freed his portion and

then the mukatab could not pay, the value of what was left of the

mukatab would be altered because of the one who freed his portion. Had

it been a true setting-free, his estimated value would have been taken

from the property of the one who set free until he had been set

completely free as the Messenger of Allah, may Allah bless him and

grant him peace, said, 'Whoever frees his share in a slave and has

money to cover the full price of the slave, justly evaluated for him,

gives his partners their shares. If not, he frees of him what he

frees.' " (See Book 37 hadith 1).

He said, "Another

clarification of that is that part of the sunna of the muslims in

which there is no dispute, is that whoever frees his share of a

mukatab, the mukatab is not set fully free using his property. Had he

been truly set free, the wala' would have been his alone rather than

his partners. Part of what will clarify that also is that part of the

sunna of the muslims is that the wala' belongs to whoever writes the

contract of kitaba. The women who inherit from the master of the

mukatab do not have any of the wala' of the mukatab. If they free any

of their share, the wala' belongs to the male children of the master

of the mukatab or his male paternal relations."

Malik said, "If people are together in one kitaba, their master

cannot free one of them without consulting his companions who are with

him in the kitaba and obtaining their consent. If they are young,

however, their consultation means nothing and it is not permitted to

them. That is because a man might work for all the people and he might

pay their kitaba for them to complete their freedom. Their master

approaches the one who will pay for them and their rescue from slavery

is through him. He frees him and so makes those who remain unable to

pay. He does it intending benefit and increase for himself. It is not

permitted for him to do that to those of them who remain. The

Messenger of Allah, may Allah bless him and grant him peace, said,

'There must be no harm nor return of harm.' This is the most severe

harm."

Malik said about slaves who wrote a kitaba together

that it was permitted for their master to free the old and exhausted

of them and the young when neither of them could pay anything, and

there was no help nor strength to be had from any of them in their

kitaba.

Malik said about a man who had his slave in a kitaba and then the

mukatab died and left his umm walad, and there remained for him some

of his kitaba to pay and he left what would pay it, "The umm walad is

a slave since the mukatab was not freed until he died and he did not

leave children that were set free by his paying what remained, so that

the umm walad of their father was freed by their being set free."

Malik said about a mukatab who set free a slave of his or gave

sadaqa with some of his property and his master did not know that

until he had set the mukatab free, "That has been performed by him and

the master does not rescind it. If the master of the mukatab knows

before he sets the mukatab free, he can reject that and not permit it.

If the mukatab is then freed and it becomes in his power to do so, he

does not have to free the slave, nor give the sadaqa unless he does it

voluntarily from himself."

Malik said, The best of what I have heard about a mukatab whose

master frees him at death, is that the mukatab is valued according to

what he would fetch if he were sold. If that value is less than what

remains against him of his kitaba, his freedom is taken from the third

that the deceased can bequeath. One does not look at the number of

dirhams which remain against him in his kitaba. That is because had he

been killed, his killer would not be in debt for other than his value

on the day he killed him. Had he been injured, the one who injured him

would not be liable for other than the blood-money of the injury on

the day of his injury. One does not look at how much he has paid of

dinars and dirhams of the contract he has written because he is a

slave as long as any of his kitaba remains. If what remains in his

kitaba is less than his value, only whatever of his kitaba remains

owing from him is taken into account in the third of the property of

the deceased. That is because the deceased left him what remains of

his kitaba and so it becomes a bequest which the deceased made."

Malik said, "The illustration of that is that if the price of the

mukatab is one thousand dirhams, and only one hundred dirhams remain

of his kitaba, his master leaves him the one hundred dirhams which

complete it for him. It is taken into account in the third of his

master and by it he becomes free."

Malik said that if a man

wrote his slave a kitaba at his death, the value of the slave was

estimated. If there was enough to cover the price of the slave in one

third of his property, that was permitted for him.

Malik

said, "The illustration of that is that the price of the slave is one

thousand dinars. His master writes him a kitaba for two hundred dinars

at his death. The third of the property of his master is one thousand

dinars, so that is permitted for him. It is only a bequest which he

makes from one third of his property. If the master has left bequests

to people, and there is no surplus in the third after the value of the

mukatab, one begins with the mukatab because the kitaba is setting

free, and setting free has priority over bequests. When those bequests

are paid from the kitaba of the mukatab, they follow it. The heirs of

the testator have a choice. If they want to give the people with

bequests all their bequests and the kitaba of the mukatab is theirs,

they have that. If they refuse and hand over the mukatab and what he

owes to the people with bequests they can do that, because the third

commences with the mukatab and because all the bequests which he makes

are as one."

If the heirs then say, "What our fellow

bequeathed was more than one third of his property and he has taken

what was not his," Malik said, "His heirs choose. It is said to them,

'Your companion has made the bequests you know about and if you would

like to give them to those who are to receive them according to the

deceased's bequests, then do so. If not, hand over to the people with

bequests one third of the total property of the deceased.' "

Malik continued, "If the heirs surrender the mukatab to the people

with bequests, the people with bequests have what he owes of his

kitaba. If the mukatab pays what he owes of his kitaba, they take that

in their bequests according to their shares. If the mukatab cannot

pay, he is a slave of the people with bequests and does not return to

the heirs because they gave him up when they made their choice, and

because when he was surrendered to the people with bequests, they were

liable. If he died, they would not have anything against the heirs. If

the mukatab dies before he pays his kitaba and he leaves property

which is more than what he owes, his property goes to the people with

bequests. If the mukatab pays what he owes, he is free and his wala'

returns to the paternal relations of the one who wrote the kitaba for

him."

Malik spoke about a mukatab who owed his master ten

thousand dirhams in his kitaba, and when he died he remitted one

thousand dirhams from it. He said, "The mukatab is valued and his

value is taken into consideration. If his value is one thousand

dirhams and the reduction is a tenth of the kitaba, that portion of

the slave's price is one hundred dirhams. It is a tenth of the price.

A tenth of the kitaba is therefore reduced for him. That is converted

to a tenth of the price in cash. That is as if he had had all of what

he owed reduced for him. Had he done that, only the value of the slave

- one thousand dirhams - would have been taken into account in the

third of the property of the deceased. If that which he had remitted

is half of the kitaba, half the price is taken into account in the

third of the property of the deceased. If it is more or less than

that, it is according to this reckoning."

Malik said, "When a

man reduces the kitaba of his mukatab by one thousand dirhams at his

death from a kitaba of ten thousand dirhams, and he does not stipulate

whether it is from the beginning or the end of his kitaba, each

instalment is reduced for him by one tenth."

Malik said, "If

a man remits one thousand dirhams from his mukatab at his death from

the beginning or end of his kitaba, and the original basis of the

kitaba is three thousand dirhams, the mukatab's cash value is

estimated. Then that value is divided. That thousand which is from the

beginning of the kitaba is converted into its portion of the price

according to its proximity to the term and its precedence and then the

thousand which follows the first thousand is according to its

precedence also until it comes to its end, and every thousand is paid

according to its place in advancing and deferring the term because

what is deferred of that is less in respect of its price. Then it is

placed in the third of the deceased according to whatever of the price

befalls that thousand according to the difference in preference of

that, whether it is more or less, then it is according to this

reckoning."

Malik spoke about a man who willed a man a fourth

of a mukatab or freed a fourth, and then the man died and the mukatab

died and left a lot of property, more than he owed. He said, "The

heirs of the first master and the one who was willed a fourth of the

mukatab are given what they are still owed by the mukatab. Then they

divide what is left over, and the one willed a fourth has a third of

what is left after the kitaba is paid. The heirs of his master gets

two-thirds. That is because the mukatab is a slave as long as any of

his kitaba remains to be paid. He is inherited from by the possession

of his person."

Malik said about a mukatab whose master freed

him at death, "If the third of the deceased will not cover him, he is

freed from it according to what the third will cover and his kitaba is

decreased according to that. If the mukatab owed five thousand dirhams

and his value is two thousand dirhams cash, and the third of the

deceased is one thousand dirhams, half of him is freed and half of the

kitaba has been reduced for him." Malik said about a man who said in

his will, "My slave so-and-so is free and write a kitaba for so-and-

so", that the setting free had priority over the kitaba.