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Hadith 35335
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."
Muwatta Malik Book 39, Hadith 6
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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
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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