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Hadith 35339
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."
Muwatta Malik Book 39, Hadith 10
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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." Muwatta Malik Book 39, Hadith 9
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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." Muwatta Malik Book 39, Hadith 11