WorldOfIslam.info - Malik's Muwatta Hadith
Book 40 - Hudud
Section: Judgement on the Mudabbar
Book 40, Number
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
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
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
Malik said, "When he is set free, the umm
walad is part of his property which is surrendered to him when he is set
Section: General Section on Tadbir
Book 40, Number
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.
Section: Bequests involving Tadbir
Book 40, Number
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
"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 . "
Section: A Master's Intercourse with His
Slave-girl when he has Made her Mudabbara
Book 40, Number
Malik related to me from Nafi that Abdullah
ibn Umar made two of his slave-girls mudabbara, and he had intercourse with
them while they were mudabbara.
Book 40, Number
Malik related to me from Yahya ibn Said that
Said ibn al-Musayyab used to say, "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."
Section: Selling Mudabbars
Book 40, Number
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 the master is alive.
If the master dies and has no debts, the mudabbar is included in the third (of
the bequest) because he expected his work from him as long as he lived. He
cannot serve him all his life, and then he frees him from his heirs out of the
main portion of his property when he dies. If the master of the mudabbar dies
and has no property other than him, one third of him is freed, and two thirds
of him belong to the heirs. If the master of the mudabbar dies and owes a debt
which encompasses the mudabbar, he is sold to meet the debt because he can
only be freed in the third (which is allowed for bequest) ."
He said, "If the debt only includes half of
the slave, half of him is sold for the debt. 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 buy him unless the mudabbar
buys himself from his master. He is permitted to do that. Or else some one
gives the master of the mudabbar money and his master who made him a mudabbar
frees him. That is also permitted for him."
Malik said, "His wala' belongs to his master
who made him a mudabbar."
Malik said, "It is not permitted to sell the
service of a mudabbar because it is an uncertain transaction since one does
not know how long his master will live. That is uncertain and it is not good."
Malik spoke about a slave who was shared
between two men, and one of them made his portion mudabbar. He said, "They
estimate his value between them. If the one who made him mudabbar buys him, he
is all mudabbar. If he does not buy him, his tadbir is revoked unless the one
who retains ownership of him wishes to give his partner who made him mudabbar
his value. If he gives him to him for his value, that is binding, and he is
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 becomes clear. If the
christian dies and has a debt, his debt is paid from the price of the slave
unless he has in his estate what will pay the debt. Then the mudabbar is set
Section: Injuries Caused by Mudabbars
Book 40, Number
Malik related to me that he heard that Umar
ibn Abd al-Aziz gave a judgement about the 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-money of 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-money for the in jury
is divided into thirds. A third of the blood-money is against the third of him
which was set free, and two-thirds are against the two-thirds which the heirs
have. If they wish, they surrender what they have of him to the party with 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 injury
is a criminal action by the 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 be paid from the price of the slave. Then the debt of his
master would be paid, and then 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 the slave is more
important than the debt of his master. That is because, if the man dies and
leaves a mudabbar slave whose value is one hundred and fifty dinars, and the
slave strikes a free man on the head with a blow that lays open the skull, and
the blood-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. The blood-money
is more pressing against his person than the debt of his master. The debt of
his master is more pressing than the tadbir which is a bequest from the third
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 is enough in the third
property that the deceased can bequeath to free all the mudabbar, he is freed
and the blood-money due from his criminal action is 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's debt
did exceed that at all , he was more entitled to it and it was taken from the
one who owed the debt, according to what the creditor was owed in excess of
the blood-money of the injury. If his debt did not exceed it at all, he did
not take the slave.
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 full for
the blood-money of his injury and the mudabbar is returned to his master. If
there is not enough to pay it, he takes it from the blood-money and uses the
mudabbar for what remains of the blood-money."
Section: Injuries Caused by the Umm Walad
Book 40, Number
Malik said in the case of an umm walad who
injured someone, "The blood-money of that injury is the responsibility of her
master from his property, unless the blood-money of the 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."
Holy Quran Quotes
“And they (polytheists, disbelievers in the Oneness of Allah and in His Messenger, Muhammad (saw) ) will not cease fighting you until they turn you back from your religion (Islamic Monotheism) if they can.”