Yahya related to me from Malik that Yahya ibn Said said that Abu
Bakr ibn Muhammad ibn Amr ibn Hazm informed him that he had taken a
Nabatean who had stolen some iron rings and jailed him in order to cut
off his hand. Amra bint Abd ar-Rahman sent a girl mawla to him called
Umayya. Abu Bakr said that she had come to him while he was among the
people and said that his aunt Amra sent word to him saying, "Son of my
brother! You have taken a Nabatean for something insignificant which
was mentioned to me. Do you want to cut off his hand?" He had said,
"Yes." She said, ''Amra says to you not to cut off the hand except for
a quarter of a dinar and upwards."
Abu Bakr added, "So I let
the Nabatean go."
Malik said, "The generally agreed on way of
doing things among us about the confession of slaves is that if a
slave confesses something against himself, the hadd and punishment for
it is inflicted on his body. His confession is accepted from him and
one does not suspect that he would inflict something on himself."
Malik said, "As for the one of them who confesses to a matter
which will incur damages agains this master, his confession is not
accepted against his master."
Malik said, "One does not cut
off the hand of a hireling or a man who is with some people to serve
them, if he robs them, because his state is not the state of a thief.
His state is the state of a treacherous one. The treacherous one does
not have his hand cut off."
Malik said about a person who
borrows something and then denies it, "His hand is not cut off. He is
like a man who owes a debt to another man and denies it. He does not
have his hand cut off for what he has denied."
Malik said,
"The generally agreed-on way of dealing among us, with the thief who
is found in a house and has gathered up goods and has not taken them
out, is that his hand is not cut off. That is like the man who places
wine before him to drink it and does not do it. The hadd is not
imposed on him. That is like a man who sits with a woman and desires
to have haram intercourse with her and does not do it and he does not
reach her. There is no hadd against that either."
Malik said,
"The generally agreed-on way of doing things among us is that there is
no cutting off the hand for what is taken by chance, openly and in
haste, whether or not its price reaches that for which the hand is cut
off."
Muwatta Malik Book 41, Hadith 37