Muwatta Imam Malik (Riwayat Yahya)

It is narrated from Humaid bin Qais Makki that a mukatab, Ibn Mutawakkil, died in Makkah, and some of the price of his manumission was still due, and he also owed debts to people, and he left behind a daughter. The governor of Makkah found it difficult to decide in this matter, so he wrote to Abdul Malik bin Marwan. Abdul Malik replied: First pay off the debts owed to people, then pay whatever remains of the price of manumission, and after that, whatever is left should be divided between his daughter and his mawla.

Imam Malik, may Allah have mercy on him, said: In our view, the ruling is as follows: If a slave says to his master, "Make me a mukatab (contracted for manumission)," it is not obligatory upon the master to do so against his will, and I have not heard from any scholar that the master would be compelled to make his slave a mukatab. And when someone would mention to them the saying of Allah, the Glorious and Exalted: "Contract them (for manumission) if you know any good in them," they would recite these verses: "When you have finished with Ihram, then hunt," and, "When the prayer is finished, then disperse in the land and seek the bounty of Allah."

Imam Malik, may Allah have mercy on him, says: This is also an imperative form, but here Allah Almighty has granted people permission in this matter. This command has not been made obligatory for them.

Imam Malik, may Allah have mercy on him, said: I heard some people of knowledge regarding the explanation of this verse: "Give them from the wealth which Allah has given you." They used to say: What is meant by this verse is that a man should make his slave a mukatab (contracted for freedom), then forgive him some part of the amount agreed upon in the contract of manumission.

Imam Malik, may Allah have mercy on him, said: I have heard this as good and have found people acting upon it.

Imam Malik, may Allah have mercy on him, said: It has reached me that Sayyiduna Abdullah bin Umar, may Allah be pleased with them both, made his slave a mukatab for thirty-five thousand dirhams, then in the end he forgave him five thousand dirhams.

Imam Malik, may Allah have mercy on him, said: When a slave becomes a mukatab, his wealth will belong to him. However, his children will not be included in his contract of kitabah, unless it is stipulated as a condition, then the children will also be included.

Imam Malik, may Allah have mercy on him, said: If a person makes his slave a mukatab (one who has a contract of manumission) and that slave has a slave-girl who is pregnant from him, but neither the slave nor the master knows about the pregnancy, then when the child is born, it will not belong to the mukatab, rather it will belong to the master. However, the slave-girl will remain with the mukatab because she is his property.

Imam Malik, may Allah have mercy on him, said: If a woman dies leaving behind her mukatab (a slave contracted to buy his freedom), and she has two heirs—one is her husband and the other is her son—then if the mukatab dies before paying the price of his contract, the husband and the son will divide his inheritance according to the Book of Allah (one quarter will be for the husband and the rest for the son). And if he dies after paying the price of his contract, then all his inheritance will go to the son, and the husband will get nothing.

Imam Malik, may Allah have mercy on him, said: If a person has intercourse with his mukatabah slave woman and she becomes pregnant, then the slave woman has the choice whether she remains as an umm walad or maintains her contract of manumission. If she does not become pregnant, then she will remain a mukatabah.

Imam Malik, may Allah have mercy on him, said: In our view, it is unanimously agreed that a slave who is jointly owned by two people cannot be made a mukatab (contracted for manumission) by only one of them, even if the other partner gives permission. Rather, both partners together can make him a mukatab, because if one partner makes his share a mukatab and the mukatab pays the amount for the contract, then that portion would have to be set free. Now, the partner who has set free a portion is not obliged to guarantee the freedom of the remaining portion to the other partner, because the ruling of the Messenger of Allah, peace and blessings be upon him, regarding paying the price of the other partner’s share applies to emancipation (it‘aq), not to mukatabah (contract of manumission).

Imam Malik, may Allah have mercy on him, said: If this partner does not know this issue, and he makes his share a mukatab and receives all or part of the price of the contract of manumission, then whatever has been received should be divided between him and his partner according to their respective shares. The contract of manumission will be invalid, and the mukatab will remain a slave as before.

Imam Malik, may Allah have mercy on him, said: If a mukatab (a slave with a contract for freedom) is jointly owned by two men, and then one of them grants him respite while the other does not, and the one who did not grant respite collects some of his due, and after that the mukatab dies and does not leave enough wealth to cover the amount of the contract, then whatever wealth he leaves, both partners will first collect their respective outstanding shares, and whatever remains will be divided equally between them. If the mukatab becomes incapable (of fulfilling the contract), and the one who did not grant respite has collected more than the other partner, then the slave will remain jointly owned, half and half, between the two.

And whoever has taken more will not return anything to his partner, because he took it with his partner’s permission. If one of them had forgiven his share and the other had received something, then if the slave becomes incapable, the slave will remain shared between both, and the one who received something will not give anything to the other partner, because he has received his right. Its example is that two men have a debt upon one man by the same document, then one of them grants him respite and the other, out of eagerness, collects something, and afterwards the debtor becomes insolvent. Then the one who collected will not give anything from it to the other partner.

Imam Malik, may Allah have mercy on him, said: In our view, it is agreed upon that if several slaves are contracted for manumission (mukatab) in a single contract, then the responsibility of one will fall upon the others. If any of them dies, the amount of the contract will not be reduced. If any of them becomes incapable and gives up, then his companions should, according to their ability, make him work and take his wages, and seek help in paying the amount of the contract. If all are freed, he too will be freed, and if all remain slaves, he too will remain a slave.

Imam Malik, may Allah have mercy on him, said: In our view, it is agreed upon that there can be no guarantee for the compensation of kitabah (emancipation contract). So when a master makes a slave a mukatab (contracted for freedom), the compensation of kitabah cannot be taken as a guarantee from anyone if the slave becomes incapable or dies; nor is this the way of the Muslims. Because if someone becomes a guarantor for the compensation of kitabah for the mukatab and the master pursues him and collects the compensation from the guarantor, then this collection will be unlawful. This is because the guarantor has neither purchased the mukatab so that the money given would be in exchange for him, nor has the mukatab become free so that the money would be in exchange for his freedom. Rather, when the mukatab becomes incapable, he again becomes the slave of his master. The reason for this is that the debt of kitabah is not valid in such a way that its guarantee would be correct. Rather, kitabah is a thing: if the mukatab is freed by it, he will become free; otherwise, he will remain a slave. For this reason, if the mukatab dies and is indebted to people, then the master and the creditors will not have equal shares; rather, the creditors will have more right to his wealth. If the mukatab becomes incapable and is indebted to people, then he will become the slave of his master, and the creditors’ debt will remain upon him. When he becomes free, then they may pursue him; they will not have the right to sell him and recover their debt.

Imam Malik, may Allah have mercy on him, said that when slaves are made mukatab (contracted for manumission) in a single contract, and there is no such kinship among them that would prevent them from inheriting from one another, then all of them will be guarantors for each other; none of them can be freed without the others, until the full amount of the kitabah (manumission contract) is paid. If one of them dies and leaves behind wealth that exceeds the total amount of the kitabah for all, then the kitabah amount will be paid from that wealth, and whatever remains will be taken by the master; it will not go to his companions. Then, for the amount spent from this wealth on the freedom of one slave, the master will collect that amount from each of the other slaves. Because the slave who died was their guarantor, the amount spent on his freedom for theirs must be paid by them. If the deceased mukatab has a free son who was not born during the state of kitabah, nor was the contract of kitabah established upon him, then he will not inherit from him, because the mukatab was not free at the time of death.

Imam Malik, may Allah have mercy on him, said: If a mukatab makes his slave a mukatab, then it will be seen: if he has set the price of the contract of manumission lower as a concession, then this contract will not be valid; and if he has set the price of the contract of manumission considering his own benefit, then it will be valid.