If a slave who has entered a contract of manumission (mukatabah) becomes unable to pay the agreed sum, he will return to slavery. And a man who has a child by his slave-girl is not permitted to sell her,
because the agreement of freedom with the master was only in exchange for the sum, and now that he has been unable to pay even that sum, he is certainly still a slave.
أم ولد refers to a slave-girl who has borne a child to her master.
[Nayl al-Awtar: 168/4]
Narrated Abdullah ibn Umar, may Allah be pleased with them both, that Umar, may Allah be pleased with him, forbade the sale of umm walad slave-girls and said:
لا تباع ولا تورث يستمتع بها ما بدا له ، فإذا مات فهي حرة
“This slave-girl cannot be gifted, nor can she be divided as an inheritance. As long as the master wishes, he may benefit from her, and when he dies, she is free.”
[Muwatta: 776/2, Daraqutni: 134/4, Bayhaqi: 342/10]
Those who permit the sale of umm walad slave-girls base their argument on this hadith.
Narrated Jabir, may Allah be pleased with him, that:
كنا نبيع سرارينا أمهات الأولاد والنبي صلى الله عليه وسلم حي لا يرى بذلك باسا
“We used to sell our umm walad slave-girls during the lifetime of the Messenger of Allah ﷺ, and he did not see any harm in it.”
[Sahih: Sahih Abu Dawud: 3345, Kitab al-Itq: Chapter on freeing umm walad slave-girls; Irwa al-Ghalil: 1777; Abu Dawud: 3954; Ibn Hibban: 4308; Hakim: 19/2; Ibn Majah: 2517; Bayhaqi: 347/10; al-Fath al-Rabbani: 161/14; Mawarid al-Zaman: 1216]
(Ibn Hazm) Although the chain of the hadith of Jabir, may Allah be pleased with him, is sahih, it cannot be used as evidence, because it does not mention that the Messenger of Allah ﷺ had knowledge of this practice.
[al-Muhalla bil-Athar: 214/8]
(Khattabi) It is possible that this sale was permissible earlier, and then in the final period of his life the Prophet ﷺ forbade it, but this matter did not become widely known. Then when Umar, may Allah be pleased with him, came to know of it, he forbade it.
[Ma’alim al-Sunan: 74/4]
(Jumhur) The sale of an umm walad is not permissible.
[Nayl al-Awtar: 169/4]
(Ibn Qudamah) The Companions are unanimous on this.
[al-Mughni: 587/14]
(Rajih) The sale of an umm walad is disliked (makruh), not forbidden (haram).
It is not haram, because no sahih hadith from the Messenger of Allah ﷺ establishes its prohibition. It is not permissible without reservation, because the hadith of Jabir, may Allah be pleased with him, does not make clear that the Messenger of Allah ﷺ had knowledge of this act and still let it stand.
[Subul al-Salam: 1058/3; Nayl al-Awtar: 170/4]
And the umm walad slave-girl becomes free upon the death of her master or when he grants her the choice of freedom.
➊ As is in the narration from Umar, may Allah be pleased with him:
فإذا مات فهي حرة
“And when the master dies, she is free.”
[Muwatta: 776/2]
➋ Juwayriyah, the Mother of the Believers, may Allah be pleased with her, says that when the Messenger of Allah ﷺ died he left behind no dirham or dinar as inheritance, no slave, no slave-girl, nor anything else, except a white mule, his weapons, and some land which he had given in charity.
[Bukhari: 2739, Kitab al-Wasaya: Chapter on bequests]
The point of evidence in this hadith is that at the time of his death the Messenger of Allah ﷺ left no slave-girl, although it is well known that Maria al-Qibtiyya, may Allah be pleased with her, was his umm walad slave-girl, and she died during the caliphate of Umar, may Allah be pleased with him.
[Qafw al-Athar: 1796/5]
It is known that during the lifetime of the Prophet ﷺ Maria al-Qibtiyya, may Allah be pleased with her, was his umm walad slave-girl, but when he died she was no longer a slave-girl, rather she became free.
