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Hadith 35333
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."
Muwatta Malik Book 39, Hadith 4
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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." Muwatta Malik Book 39, Hadith 3
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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." Muwatta Malik Book 39, Hadith 5