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Hadith 35346
Malik spoke about a mudabbar who said to his master, "Free me
immediately and I will give fifty dinars which I will have to pay in
instalments." His master said, "Yes. You are free and you must pay
fifty dinars, and you will pay me ten dinars every year." The slave
was satisfied with this. Then the master dies one, two or three days
after that. He said, "The freeing is confirmed and the fifty dinars
become a debt against him. His testimony is permitted, his
inviolability as a free man is confirmed, as are his inheritance and
his liability to the full hudud punishments. The death of his master,
however, does not reduce the debt for him at all."
Malik said
that if a man who made his slave a mudabbar died and he had some
property at hand and some absent property, and in the property at hand
there was not enough (in the third he was allowed to bequeath) to
cover the value of the mudabbar, the mudabbar was kept there together
with this property, and his tax (kharaj) was gathered until the
master's absent property was clear. Then if a third of what his master
left would cover his value, he was freed with his property and what
had gathered of his tax. If there was not enough to cover his value in
what his master had left, as much of him was freed as the third would
allow, and his property was left in his hands.
Muwatta Malik Book 40, Hadith 2
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Yahya related to me that Malik said, "What is done in our
community in the case of a man who makes his slave-girl a mudabbara
and she gives birth to children after that, and then the slave-girl
dies before the one who gave her a tadbir is that her children are in
her position. The conditions which were confirmed for her are
confirmed for them. The death of their mother does not harm them. If
the one who made her mudabbara dies, they are free if their value is
less than one third of his total property."
Malik said, "For
every mother by birth as opposed to mother by suckling, her children
are in her position. If she is free and she gives birth after she is
free, her children are free. If she is a mudabbara or mukataba, or
freed after a number of years in service, or part of her is free or
pledged or she is an umm walad, each of her children are in the same
position as their mother. They are set free when she is set free and
they are slaves when she is a slave."
Malik said about the
mudabbara given a tadbir while she was pregnant, "Her children are in
her position. That is also the position of a man who frees his slave-
girl while she is pregnant and does not know that she is pregnant."
Malik said, "The sunna about such women is that their
children follow them and are set free by their being set free."
Malik said, "It is the same as if a man had bought a slave-girl
while she was pregnant. The slave-girl and what is in her womb belong
to the one who bought her whether or not the buyer stipulates that."
Malik continued, "It is not halal for the seller to make an
exception about what is in her womb because that is an uncertain
transaction. It reduces her price and he does not know if that will
reach him or not. That is as if one sold the foetus in the womb of the
mother. That is not halal because it is an uncertain transaction ."
Malik said about the mukatab or mudabbar who bought a slave-
girl and had intercourse with her and she became pregnant by him and
gives birth, "The children of both of them by a slave-girl are in his
position. They are set free when he is set free and they are slaves
when he is a slave."
Malik said, "When he is set free, the
umm walad is part of his property which is surrendered to him when he
is set free." Muwatta Malik Book 40, Hadith 1
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Malik said, "The generally agreed-on way of doing things in our
community is that any setting-free which a man makes in a bequest that
he wills in health or illness can be rescinded by him when he likes
and changed when he likes as long as it is not a tadbir. There is no
way to rescind a tadbir once he has made it.
"As for every
child born to him by a slave-girl who he wills to be set free but he
does not make mudabbara, her children are not freed with her when she
is freed. That is because her master can change his will when he likes
and rescind it when he likes, and being set free is not confirmed for
her. She is in the position of a slave-girl whose master says, 'If so-
and-so remains with me until I die, she is free.' " (i.e. he does not
make a definite contract.)
Malik said, "If she fulfils that,
that is hers. If he wishes, before that, he can sell her and her child
because he has not entered her child into any condition he has made
for her.
"The bequest in setting free is different from the
tadbir. The precedent of the sunna makes a distinction between them.
Had a bequest been in the position of a tadbir, no testator would be
able to change his will and what he mentioned in it of setting free.
His property would be tied up and he would not be able to use it."
Malik said about a man who made all his slaves mudabbar while
he was well and they were his only property, "If he made some of them
mudabbar before the others, one begins with the first until the third
of his property is reached. (i.e. their value is matched against the
third, and those whose value is covered are free.) If he makes the
mall mudabbar in his illness, and says in one statement, 'So-and-so is
free. So-and-so is free. So-and-so is free if my death occurs in this
illness,' or he makes them all mudabbar in one statement, they are
matched against the third and one does not begin with any of them
before the others. It is a bequest and they have a third of his
property divided between them in shares. Then the third of his
property frees each of them according to the extent of his share.
"No single one of them is given preference when that all occurs in
his illness."
Malik spoke about a master who made his slave a
mudabbar and then he died and the only property he had was the
mudabbar slave and the slave had property. He said, "A third of the
mudabbar is freed and his property remains in his possession."
Malik said about a mudabbar whose master gave him a kitaba and
then the master died and did not leave any property other than him, "A
third of him is freed and a third of his kitaba is reduced, and he
owes two-thirds."
Malik spoke about a man who freed half of
his slave while he was ill and made irrevocable his freeing half of
him or all of him, and he had made another slave of his mudabbar
before that. He said, "One begins with the slave he made mudabbar
before the one he freed while he was ill. That is because the man
cannot revoke what he has made mudabbar and cannot follow it with a
matter which will rescind it. When this mudabbar is freed, then what
remains of the third goes to the one who had half of him freed so as
to complete his setting-free entirely in the third of the property of
the deceased. If what is left of the third does not cover that,
whatever is covered by what is left of the third is freed after the
first mudabbar is freed . " Muwatta Malik Book 40, Hadith 3