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Hadith 35458
Yahya said that Malik said, "The way of doing things in our
community about Yahya said that Malik said, "The procedure in swearing
in manslaughter is that those who claim blood swear and it becomes due
by their swearing. They swear fifty oaths, and there is blood-money
for them according to the division of their inheritances. If it is not
possible to divide up the oaths which they swear between them evenly,
one looks to the one who has most of those oaths against him, and that
oath is obliged against him."
Malik said, "If the slain man
only has female heirs, they swear and take the blood-money. If he only
has one male heir, he swears fifty oaths and takes the blood-money.
That is only in the accidental killing, not in the intentional one."
Muwatta Malik Book 44, Hadith 4
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Yahya said that Malik said, "The way of doing things in our
community about which there is no dispute is that women do not swear
in the swearing for the intentional act. If the murdered man only has
female relatives, the women have no right to swear for blood and no
pardon in murder."
Yahya said that Malik said about a man who
is murdered, "If the paternal relatives of the murdered man or his
mawali say, 'We swear and we demand our companion's blood,' that is
their right."
Malik said, "If the women want to pardon him,
they cannot do that. The paternal relatives and mawali are entitled to
do that more than them because they are the ones who demand blood and
swear for it."
Malik said, "If the paternal relatives or
mawali pardon after they demand blood and the women refuse and say,
'We will not abandon our right against the murderer of our companion,'
the women are more entitled to that because whoever takes retaliation
is more entitled than the one who leaves it among the women and
paternal relatives when the murder is established and killing
obliged."
Malik said, "At least two claimants must swear in
murder. The oaths are repeated by them until they swear fifty oaths,
then they have the right to blood. That is how things are done in our
community."
Malik said, "When people beat a man and he dies
in their hands, they are all slain for him. If he dies after their
beating, there is swearing. If there is swearing, it is only against
one man and only he is slain. We have never known the swearing to be
against more than one man."
Malik spoke about a slave who had
his hand or foot broken and then the break mended . He said, "The one
who injured him is not obliged to pay anything. If that break causes
him loss or scar, the one who injured him must pay according to what
he diminished of the value of the slave."
Malik said, "What
is done in our community about retaliation between slaves is that it
is like retaliation between freemen. The life of the slave-girl for
the life of the slave, and her injury for his injury. When a slave
intentionally kills a slave, the master of the murdered slave has a
choice. If he wishes, he kills him, and if he wishes, he takes the
blood-money. If he takes the blood-money, he takes the value of his
slave. If the owner of the slave who killed wishes to give the value
of the murdered slave, he does it. If he wishes, he surrenders his
slave. If he surrenders him, he is not obliged to do anything other
than that. When the owner of the murdered slave takes the slave who
murdered and is satisifed with him, he must not kill him. All
retaliations between slaves for cutting off of the hand and foot and
such things are dealt with in the same way as in the murder."
Malik said about a muslim slave who injures a jew or christian, "If
the master of the slave wishes to pay blood-money for him according to
the injury, he does it. Or else he surrenders him and he is sold, and
the jew or christian is given the blood-money of the injury or all the
price of the slave if the blood-money is greater than his price. The
jew or christian is not given a muslim slave." Muwatta Malik Book 44, Hadith 3
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Yahya said that Malik said, "When the relatives of the deceased
accept the blood-money then it is inherited according to the Book of
Allah. Daughters of the dead man inherit and so do sisters, and
whichever women would inherit from him ordinarily.
If the
women do not take all his inheritance, then what remains goes to the
agnatic relations who most deserve to inherit from him in conjunction
with the women."
Malik said, "When one of the heirs of a man
killed by mistake attempts to take his due from the blood-money while
his companions are absent, he may not do that, and he has no right to
any of the blood-money, however large or small, unless the qasama has
been completed by him. If he swears fifty oaths then he has the right
to his portion of the blood-money. That is because the blood-money is
not established as due without there being fifty oaths, and the blood-
money is not established as due unless the responsibility for the
blood is established. If any one of the heirs comes after that he
swears a number of the oaths commensurate with his fraction of the
inheritance and takes his right until all the heirs exact their
complete right. If a maternal uncle comes he has one sixth and must
swear one sixth of the fifty oaths. So whoever swears may take his due
from the blood-money and whoever abstains annuls his right. If one of
the heirs is absent or is a child who has not reached puberty, those
who are present swear fifty oaths and if the one who was absent comes
after that or the child reaches puberty, they swear. and they swear
according to their due of the blood-money and according to their
shares of inheritance from it."
Yahya said that Malik said,
"This is the best I have heard on the matter." Muwatta Malik Book 44, Hadith 5