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."
Muwatta Malik Book 39, Hadith 7