MaliksMuwattaBook40.Hudud
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 1.
Section:JudgementontheMudabbar.
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, andthentheslave-girl diesbeforetheonewhogaveheratadbiristhatherchildrenare in her position. The conditions which were confirmed for her are confirmed for them.
Thedeathoftheirmotherdoesnotharmthem.Iftheonewhomadehermudabbara 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.Ifsheisamudabbaraormukataba,orfreedafteranumberofyearsinservice,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 areinherposition.Thatisalsothepositionofamanwhofreeshisslave-girlwhileshe is pregnant and does not know that she is pregnant.”
Maliksaid,“Thesunnaaboutsuchwomenisthattheirchildrenfollowthemandareset 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. Theslave-girlandwhatisinherwombbelongtotheonewhoboughtherwhetherornot the buyer stipulates that.”
Malikcontinued,“Itisnothalalforthesellertomakeanexceptionaboutwhatisinher 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.”
Maliksaidaboutthemukatabormudabbarwhoboughtaslave-girl andhadintercourse withherandshebecamepregnantbyhimandgivesbirth,“Thechildrenofbothofthem 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.”
Maliksaid,“Whenheissetfree,theummwaladispartofhispropertywhichis surrendered to him when he is set free.”
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 2.
Section:GeneralSectiononTadbir.
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 freeandyoumustpayfiftydinars,andyouwillpaymetendinarseveryyear.”Theslave was satisfied with this. Then the master dies one, two or three days after that. He said,
“Thefreeingisconfirmedandthefiftydinarsbecomeadebtagainsthim.Histestimony 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 gathereduntilthemaster’sabsentpropertywasclear.Thenifathirdofwhathismaster 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.
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 3.
Section:BequestsinvolvingTadbir.
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 rescindedbyhimwhenhelikesandchangedwhenhelikesaslongasit isnotatadbir. There is no way to rescind a tadbir once he has made it.
“Asforeverychildborntohimbyaslave-girlwhohewillstobesetfreebuthedoesnot make mudabbara, her children are not freed with her when she is freed. That is becausehermastercanchangehiswill whenhelikesandrescinditwhenhelikes,and being set free is not confirmed for her. She is in the position of a slave-girl whose
mastersays,‘Ifso-and-soremainswithmeuntilIdie,sheisfree.’”(i.e.hedoesnot make a definite contract.)
Malik said, “If shefulfils that, that ishers. If he wishes, before that,he can sellher and herchildbecausehehasnotenteredherchildintoanyconditionhehasmadeforher.
“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 testatorwouldbeabletochangehiswillandwhathementionedinitof settingfree.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 thefirstuntil the third of his propertyis 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 mudabbarinonestatement,theyarematchedagainstthethirdandonedoesnotbegin 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.
“Nosingleoneofthemisgivenpreferencewhenthatalloccursinhis illness.”
Malikspokeaboutamasterwhomadehisslaveamudabbarandthenhe diedandthe 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.”
Maliksaidaboutamudabbarwhosemastergavehimakitabaandthenthemasterdied 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.Ifwhatisleftofthethirddoesnotcoverthat,whateveriscoveredbywhatis left of the third is freed after the first mudabbar is freed.”
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 4.
Section:AMaster’sIntercoursewithHisSlave-girlwhenhehasMadeherMudabbara.
MalikrelatedtomefromNafithatAbdullahibnUmarmadetwoof hisslave-girls mudabbara, and he had intercourse with them while they were mudabbara.
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 5.
Section:AMaster’sIntercoursewithHisSlave-girlwhenhehasMadeherMudabbara.
MalikrelatedtomefromYahyaibnSaidthatSaidibnal-Musayyabusedtosay,“When a man makes his slave-girl mudabbara, he can have intercourse with her. He cannot sell her or give her away and her children are in the same position as her.”
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 6.
Section:SellingMudabbars.
Malik said, “The generally agreed on way of doing things in our community about a mudabbar is that the owner cannot sell him or change the position in which he has put him. If a debt overtakes the master, his creditors cannot sell the mudabbar as long as themasterisalive.If themasterdiesandhasnodebts,themudabbarisincludedinthe third (of the bequest) because he expected his work from him as long as he lived. He cannotservehimallhislife,andthenhefreeshimfromhisheirsoutofthemainportion of his property when he dies. If the master of the mudabbar dies and has no property other than him,onethird of him isfreed,and two thirds of him belongto theheirs. If the masterofthemudabbardiesandowesadebtwhichencompassesthemudabbar,heis sold to meet the debt because he can only be freed in the third (which is allowed for bequest).”
Hesaid,“Ifthedebtonlyincludeshalfof theslave,half ofhimissoldforthedebt.Then a third of what remains after the debt is freed.”
Malik said, “It is not permitted to sell a mudabbar and it is not permitted for anyone to buyhimunlessthemudabbarbuyshimselffromhismaster.He ispermittedtodothat. Orelsesomeonegivesthemasterofthemudabbarmoneyandhismasterwhomade him a mudabbar frees him. That is also permitted for him.”
Maliksaid,“Hiswala’belongstohismasterwhomadehimamudabbar.”
Malik said, “It is not permitted to sell the service of a mudabbar because it is an uncertaintransactionsinceonedoesnotknowhowlonghismasterwilllive.Thatis uncertain and it is not good.”
Malik spoke about a slave who was shared between two men, and one of them made hisportionmudabbar.Hesaid,“Theyestimatehisvaluebetweenthem.If theonewho madehimmudabbarbuyshim,heisallmudabbar.Ifhedoesnotbuyhim,histadbiris revoked unless the one who retains ownership of him wishes to give his partner who made himmudabbarhis value. If he gives himto himfor his value,that is binding, and he is all mudabbar.”
Malik spoke about the christian man who made a christian slave of his mudabbar and then the slave became muslim. He said, “One separates the master and the slave, and the slave is removed from his christian master and is not sold until his situation becomesclear.Ifthechristiandiesandhasadebt,hisdebtispaidfrom thepriceofthe slaveunlesshehasinhisestate whatwillpaythedebt.Thenthemudabbarissetfree.”
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 7.
Section:InjuriesCausedbyMudabbars.
Malikrelatedtomethatheheardthat UmaribnAbdal-Azizgaveajudgementaboutthe mudabbar who did an injury. He said, “The master must surrender what he owns of him to the injured person. He is made to serve the injured person and recompense (in the form of service) is taken from him as the blood-moneyof the injury. If he completes that before his master dies, he reverts to his master.”
Malik said, “The generally agreed on way of doing things in our community about a mudabbar who does an injury and then his master dies and the master has no property except him is that the third (allowed to be bequeathed) is freed, and then the blood- moneyfortheinjuryisdividedintothirds.Athirdof theblood-moneyisagainstthethird of him which was set free, and two-thirds are against the two-thirds which the heirs have. If theywish, theysurrender what theyhave of him tothe partywith the injury, and if they wish, they give the injured person two-thirds of the blood-money and keep their portion of the slave. That is because that injuryis a criminal action bythe slave and it is not a debt against the master by which whatever setting free and tadbir the master had done would be abrogated. If there were a debt to people held against the master of the slave, as well as the criminal action of the slave, part of the mudabbar would be sold in proportion to the blood-money of the injury and according to the debt. Then one would begin with the blood-money which was for the criminal action of the slave and it would bepaidfromthepriceof theslave. Thenthedebtofhismasterwouldbepaid,andthen one would look at what remained after that of the slave. His third would b be set free, and two-thirds of him would belong to the heirs. That is because the criminal action of theslaveismoreimportant thanthedebtofhismaster.Thatisbecause,ifthemandies and leaves a mudabbar slave whose value is one hundred and fifty dinars, and the slavestrikesafreemanontheheadwitha blowthatlaysopentheskull,andtheblood- money is fifty dinars, and the master of the slave has a debt of fifty dinars, one begins with the fifty dinars which are the blood-money of the head wound, and it is paid from the price of the slave. Then the debt of the master is paid. Then one looks at what
remains of the slave, and a third of him is set free and two-thirds of him remain for the heirs.Theblood-moneyismorepressingagainsthispersonthanthedebtofhismaster. Thedebtofhismasterismorepressingthanthetadbirwhichisabequestfromthethird of the property of the deceased. None of the tadbir is permitted while the master of the mudabbar has a debt which is not paid. It is a bequest. That is because Allah, the Blessed, the Exalted, said, ‘After any bequest that is made or any debt.’” (Sura 4 ayat 10)
Malik said, “If there isenough in the third propertythat thedeceased canbequeath to freeallthemudabbar,heisfreedandtheblood-moneyduefromhiscriminalactionis held as a debt against him which follows him after he is set free even if that blood- money is the full blood-money. It is not a debt on the master.”
Malik spoke about a mudabbar who injured a man and his master surrendered him to the injured party, and then the master died and had a debt and did not leave any property other than the mudabbar, and the heirs said, “We surrender the mudabbar to the party,” whilst the creditor said, “My debt exceeds that.” Malik said that if the creditor’sdebtdidexceedthatatall,hewasmoreentitledtoitanditwastakenfromthe one who owed the debt, according to what the creditor was owed in excess of the
blood-moneyof theinjury.Ifhisdebtdidnotexceeditatall,hedidnottaketheslave.
Malik spoke about a mudabbar who did an injury and had property, and his master refused to ransom him. He said, “The injured party takes the property of the mudabbar for the blood-money of his injury. If there is enough to pay it, the injured party is paid in fullfortheblood-moneyof hisinjuryandthemudabbarisreturnedtohismaster.Ifthere is not enough to pay it, he takes it from the blood-money and uses the mudabbar for what remains of the blood-money.”
MALIKSMUWATTABOOK40.HUDUD
MaliksMuwatta Book 40, HadithNumber 8.
Section:InjuriesCausedbytheUmmWalad.
Maliksaidinthecaseofanummwaladwhoinjured someone,“Theblood-moneyofthat injury is the responsibility of her master from his property, unless the blood-money ofthe injury is greater than the value of the umm walad. Her master does not have to pay more than her value. That is because when the master of a slave or slave-girl surrenders his slave or slave-girl for an injury which one of them has done, he does not owe any more than that, even if the blood-money is greater. As the master of the umm walad cannot surrender her because of the precedent of the sunna, when he pays her price, it is as if he had surrendered her. He does not have to pay more than that. This is the best of what I have heard about the matter. The master is not obliged to assume responsibility for more than an umm walad’s value because of her criminal action.”
About The Author
