Translation of Malik's Muwatta, Book 39:
Courtesy of ISL
Software, makers of the WinAlim
Section: Judgement on the Mukatab
Book 39, Number 39.1.1:
Malik related to me from Nafi that Abdullah ibn Umar said, "A mukatab
is a slave as long as any of his kitaba remains to be paid."
Book 39, Number 39.1.2:
Malik related to me that he had heard that Urwa ibn az-Zubayr and
Sulayman ibn Yasar said, "The mukatab is a slave as long as any of his
kitaba remains to be paid."
Malik said, "This is my opinion as well."
Malik said, "If a mukatab dies and leaves more property than what
remains to be paid of his kitaba and he has children who were born during
the time of his kitaba or whose kitaba has been written as well, they
inherit any property that remains after the kitaba has been paid."
Book 39, Number 39.1.3:
Malik related to me from Humayd ibn Qays al-Makki that a son of al-Mutawakkil
had a mukatab who died at Makka and left (enough to pay) the rest of
his kitaba and he owed some debts to people. He also left a daughter.
The governor of Makka was not certain about how to judge in the case,
so he wrote to Abd al-Malik ibn Marwan to ask him about it. Abd al-Malik
wrote to him, "Begin with the debts owed to people, and then pay what
remains of his kitaba. Then divide what remains of the property between
the daughter and the master."
Malik said, "What is done among us is that the master of a slave does
not have to give his slave a kitaba if he asks for it. I have not heard
of any of the Imams forcing a man to give a kitaba to his slave. I heard
that one of the people of knowledge, when someone asked about that and
mentioned that Allah the Blessed, the Exalted, said, 'Give them their
kitaba, if you know some good in them' (Sura 24 ayat 33) recited these
two ayats, 'When you are free of the state of ihram, then hunt for game.'
(Sura 5 ayat 3) 'When the prayer is finished, scatter in the land and
seek Allah's favour.' " (Sura 62 ayat 10)
Malik commented, "It is a way of doing things for which Allah, the
Mighty, the Majestic, has given permission to people, and it is not
obligatory for them." Malik said, "I heard one of the people of knowledge
say about the word of Allah, the Blessed, the Exalted, 'Give them of
the wealth which Allah has given you,' that it meant that a man give
his slave a kitaba and then reduce the end of his kitaba for him by
some specific amount."
Malik said, "This is what I have heard from the people of knowledge
and what I see people doing here."
Malik said, "I have heard that Abdullah ibn Umar gave one of his slaves
his kitaba for 35,000 dirhams, and then reduced the end of his kitaba
by 5,000 dirhams."
Malik said, "What is done among us is that when a master gives a mukatab
his kitaba, the mukatab's property goes with him but his children do
not go with him unless he stipulates that in his kitaba."
Yahya said, "I heard Malik say that if a mukatab whose master had
given him a kitaba had a slave-girl who was pregnant by him, and neither
he nor his master knew that on the day he was given his kitaba, the
child did not follow him because he was not included in the kitaba.
He belonged to the master. As for the slave-girl, she belonged to the
mukatab because she was his property."
Malik said that if a man and his wife's son (by another husband) inherited
a mukatab from the wife and the mukatab died before he had completed
his kitaba, they divided his inheritance between them according to the
Book of Allah. If the slave paid his kitaba and then died, his inheritance
went to the son of the woman, and the husband had nothing of his inheritance.
Malik said that if a mukatab gave his own slave a kitaba, the situation
was looked at. If he wanted to do his slave a favour and it was obvious
by his making it easy for him, that was not permitted. If he was giving
him a kitaba from desire to find money to pay off his own kitaba, that
was permitted for him.
Malik said that if a man had intercourse with a mukataba of his and
she became pregnant by him, she had an option. If she liked she could
be an umm walad. If she wished, she could confirm her kitaba. If she
did not conceive, she still had her kitaba.
Malik said, "The generally agreed on way of doing things among us
about a slave who is owned by two men is that one of them does not give
a kitaba for his share, whether or not his companion gives him permission
to do so, unless they both write the kitaba together, because that alone
would effect setting him free. If the slave were to fulfil what he had
agreed on to free half of himself, and then the one who had given a
kitaba for half of him was not obliged to complete his setting free,
that would be in opposition to the words of the Messenger of Allah,
may Allah bless him and grant him peace. 'If someone frees his share
in a slave and has enough money to cover the full price of the slave,
justly evaluated for him, he must give his partners their shares, so
the slave is completely free . ' "
Malik said, "If he is not aware of that until the mukatab has met
the terms or before he has met them the owner who has written him the
kitaba returns what he has taken from the mukatab to him, and then he
and his partner divide him according to their original shares and the
kitaba is invalid. He is the slave of both of them in his original state."
Malik spoke about a mukatab who was owned by two men and one of them
granted him a delay in the payment of the right which he was owed, and
the other refused to defer it, and so the one who refused to defer the
payment exacted his part of the due. Malik said that if the mukatab
then died and left property which did not complete his kitaba, "They
divide it according to what they are still owed by him. Each of them
takes according to his share. If the mukatab leaves more than his kitaba,
each of them takes what remains to them of the kitaba, and what remains
after that is divided equally between them. If the mukatab is unable
to pay his kitaba fully and the one who did not allow him to defer his
payment has exacted more than his associate did, the slave is still
divided equally between them, and he does not return to his associates
the excess of what he has exacted, because he only exacted his right
with the permission of his associate. If one of them remits what is
owed to him and then his associate exacts part of what he is owed by
him and then the mukatab is unable to pay, he belongs to both of them.
And the one who has exacted something does not return anything because
he only demanded what he was owed. That is like the debt of two men
in one writing against one man. One of them grants him time to pay and
the other is greedy and exacts his due. Then the debtor goes bankrupt.
The one who exacted his due does not have to return any of what he took."
Section: Assuming the Responsibility in Kitaba
Book 39, Number 39.2.4:
Malik said, "The generally agreed on way of doing things among us
is that when slaves write their kitaba together in one kitaba, and some
are responsible for others, and they are not reduced anything by the
death of one of the responsible ones, and then one of them says, 'I
can't do it,' and gives up, his companions can use him in whatever work
he can do and they help each other with that in their kitaba until they
are freed, if they are freed, or remain slaves if they remain slaves."
Malik said, "The generally agreed on way of doing things among us
is that when a master gives a slave his kitaba, it is not permitted
for the master to let anyone assume the responsibility for the kitaba
of his slave if the slave dies or is incapable. This is not part of
the sunna of the muslims. That is because when a man assumes responsibility
to the master of a mukatab for what the mukatab owes of his kitaba,
and then the master of the mukatab pursues that from the one who assumes
the responsibility, he takes his money falsely. It is not as if he is
buying the mukatab, so that what he gives is part of the price of something
that is his, and neither is the mukatab being freed so that the price
established for him buys his inviolability as a free man. If the mukatab
is unable to meet the payments he reverts to his master and is his slave.
That is because kitaba is not a fixed debt which can be assumed by the
master of the mukatab. It is something which, when it is paid by the
mukatab, sets him free. If the mukatab dies and has a debt, his master
is not one of the creditors for what remains unpaid of the kitaba. The
creditors have precedence over the master. If the mukatab cannot meet
the payments, and he owes debts to people, he reverts to being a slave
owned by his master and the debts to the people are the liability of
the mukatab. The creditors do not enter with the master into any share
of the price of his person."
Malik said, "When people are written together in one kitaba and there
is no kinship between them by which they inherit from each other, and
some of them are responsible for others, then none of them are freed
before the others until all the kitaba has been paid. If one of them
dies and leaves property and it is more than all of what is against
them, it pays all that is against them . The excess of the property
goes to the master, and none of those who have been written in the kitaba
with the deceased have any of the excess. The master's claims are overshadowed
by their claims for the portions which remain against them of the kitaba
which can be fulfilled from the property of the deceased, because the
deceased had assumed their responsibility and they must use his property
to pay for their freedom. If the deceased mukatab has a free child not
born in kitaba and who was not written in the kitaba, it does not inherit
from him because the mukatab was not freed until he died."
Section: Severance in the Kitaba for an Agreed Price
Book 39, Number 39.3.5:
Malik related to me that he heard that Umm Salama, the wife of the
Prophet, may Allah bless him and grant him peace, made a settlement
with her mukatab for an agreed amount of gold and silver.
Malik said, "The generally agreed on way of doing things among us
in the case of a mukatab who is shared by two partners, is that one
of them cannot make a settlement with him for an agreed price according
to his portion without the consent of his partner. That is because the
slave and his property are owned by both of them, and so one of them
is not permitted to take any of the property except with the consent
of his partner. If one of them settled with the mukatab and his partner
did not, and he took the agreed price, and then the mukatab died while
he had property or was unable to pay, the one who settled would not
have anything of the mukatab's property and he could not return that
for which he made settlement so that his right to the slave's person
would return to him. However, when someone settles with a mukatab with
the permission of his partner and then the mukatab is unable to pay,
it is preferable that the one who broke with him return what he has
taken from the mukatab for the severance and he can have back his portion
of the mukatab. He can do that. If the mukatab dies and leaves property,
the partner who has kept hold of the kitaba is paid in full the amount
of the kitaba which remains to him against the mukatab from the mukatab's
property. Then what remains of property of the mukatab is between the
partner who broke with him and his partner, according to their shares
in the mukatab. If one of the partners breaks off with him and the other
keeps the kitaba, and the mukatab is unable to pay, it is said to the
partner who settled with him, 'If you wish to give your partner half
of what you took so the slave is divided between you, then do so. If
you refuse, then all of the slave belongs to the one who held on to
possession of the slave.' "
Malik spoke about a mukatab who was shared between two men and one
of them made a settlement with him with the permission of his partner.
Then the one who retained possession of the slave demanded the like
of that for which his partner had settled or more than that and the
mukatab could not pay it. He said, "The mukatab is shared between them
because the man has only demanded what is owed to him. If he demands
less than what the one who settled with him took and the mukatab can
not manage that, and the one who settled with him prefers to return
to his partner half of what he took so the slave is divided in halves
between them, he can do that. If he refuses then all of the slave belongs
to the one who did not settle with him. If the mukatab dies and leaves
property, and the one who settled with him prefers to return to his
companion half of what he has taken so the inheritance is divided between
them, he can do that. If the one who has kept the kitaba takes the like
of what the one who has settled with him took, or more, the inheritance
is between them according to their shares in the slave because he is
only taking his right."
Malik spoke about a mukatab who was shared between two men and one
of them made a settlement with him for half of what was due to him with
the permission of his partner, and then the one who retained possession
of the slave took less than what his partner settled with him for and
the mukatab was unable to pay. He said, "If the one who made a settlement
with the slave prefers to return half of what he was awarded to his
partner, the slave is divided between them. If he refuses to return
it, the one who retained possession has the portion of the share for
which his partner made a settlement with the mukatab."
Malik said, "The explanation of that is that the slave is divided
in two halves between them. They write him a kitaba together and then
one of them makes a settlement with the mukatab for half his due with
the permission of his partner. That is a fourth of all the slave. Then
the mukatab is unable to continue, so it is said to the one who settled
with him, 'If you wish, return to your partner half of what you were
awarded and the slave is divided equally between you.' If he refuses,
the one who held to the kitaba takes in full the fourth of his partner
for which he made settlement with the mukatab. He had half the slave,
so that now gives him three-fourths of the slave. The one who broke
off has a fourth of the slave because he refused to return the equivalent
of the fourth share for which he settled."
Malik spoke about a mukatab whose master made a settlement with him
and set him free and what remained of his severance was written against
him as debt, then the mukatab died and people had debts against him.
He said, "His master does not share with the creditors because of what
he is owed from the severance. The creditors begin first."
Malik said, "A mukatab cannot break with his master when he owes debts
to people. He would be set free and have nothing because the people
who hold the debts are more entitled to his property than his master.
That is not permitted for him."
Malik said, "According to the way things are done among us, there
is no harm if a man gives a kitaba to his slave and settles with him
for gold and reduces what he is owed of the kitaba provided that only
the gold is paid immediately. Whoever disapproves of that does so because
he puts it in the category of a debt which a man has against another
man for a set term. He gives him a reduction and he pays it immediately.
This is not like that debt. The breaking of the mukatab with his master
is dependent on his giving money to speed up the setting free. Inheritance,
testimony and the hudud are obliged for him and the inviolability of
being set free is established for him. He is not buying dirhams for
dirhams or gold for gold. Rather it is like a man who having said to
his slave, 'Bring me such-and-such an amount of dinars and you are free',
then reduces that for him, saying, 'If you bring me less than that,
you are free.' That is not a fixed debt. Had it been a fixed debt, the
master would have shared with the creditors of the mukatab when he died
or went bankrupt. His claim on the property of the mukatab would join
Section: Injuries Caused by Mukatabs
Book 39, Number 39.4.6:
Malik said, "The best of what I have heard about a mukatab who injures
a man so that blood-money must be paid, is that if the mukatab can pay
the blood-money for the injury with his kitaba, he does so, and it is
against his kitaba. If he cannot do that, and he cannot pay his kitaba
because he must pay the blood-money of that injury before the kitaba,
and he cannot pay the blood-money of that injury, then his master has
an option. If he prefers to pay the blood-money of that injury, he does
so and keeps his slave and he becomes an owned slave. If he wishes to
surrender the slave to the injured, he surrenders him. The master does
not have to do more than surrender his slave."
Malik spoke about people who were in a general kitaba and one of them
caused an injury which entailed blood-money. He said, "If any of them
does an injury involving blood-money, he and those who are with him
in the kitaba are asked to pay all the blood-money of that injury. If
they pay, they are confirmed in their kitaba. If they do not pay, and
they are incapable then their master has an option. If he wishes, he
can pay all the blood-money of that injury and all the slaves revert
to him. If he wishes, he can surrender the one who did the injury alone
and all the others revert to being his slaves since they could not pay
the blood-money of the injury which their companion caused."
Malik said, "The way of doing things about which there is no dispute
among us, is that when a mukatab is injured in some way which entails
blood-money or one of the mukatab's children who is written with him
in the kitaba is injured, their blood-money is the blood-money of slaves
of their value, and what is appointed to them as their blood-money is
paid to the master who has the kitaba and he reckons that for the mukatab
at the end of his kitaba and there is a reduction for the blood-money
that the master has taken for the injury."
Malik said, "The explanation of that is say, for example, he has written
his kitaba for three thousand dirhams and the blood-money taken by the
master for his injury is one thousand dirhams. When the mukatab has
paid his master two thousand dirhams he is free. If what remains of
his kitaba is one thousand dirhams and the blood-money for his injury
is one thousand dirhams, he is free straightaway. If the blood-money
of the injury is more than what remains of the kitaba, the master of
the mukatab takes what remains of his kitaba and frees him. What remains
after the payment of the kitaba belongs to the mukatab. One must not
pay the mukatab any of the blood-money of his injury in case he might
consume it and use it up. If he could not pay his kitaba completely
he would then return to his master one eyed, with a hand cut off, or
crippled in body. His master only wrote his kitaba against his property
and earnings, and he did not write his kitaba so that he would take
the blood-money for what happened to his child or to himself and use
it up and consume it. One pays the blood-money of injuries to a mukatab
and his children who are born in his kitaba, or their kitaba is written,
to the master and he takes it into account for him at the end of his
Section: Selling Mukatabs
Book 39, Number 39.5.7:
Malik said, "The best of what is said about a man who buys the mukatab
of a man is that if the man wrote the slave's kitaba for dinars or dirhams,
he does not sell him unless it is for merchandise which is paid immediately
and not deferred, because if it is deferred, it would be a debt for
a debt. A debt for a debt is forbidden."
He said, "If the master gives a mukatab his kitaba for certain merchandise
of camels, cattle, sheep, or slaves, it is more correct that the buyer
buy him for gold, silver, or different goods than the ones his master
wrote the kitaba for, and that must be paid immediately, not deferred."
Malik said, "The best of what I have heard about a mukatab when he
is sold is that he is more entitled to buy his kitaba than the one who
buys him if he can pay his master the price for which he was sold in
cash. That is because his buying himself is his freedom, and freedom
has priority over what bequests accompany it. If one of those who have
written the kitaba for the mukatab sells his portion of him, so that
a half, a third, a fourth, or whatever share of the mukatab is sold,
the mukatab does not have the right of pre-emption in what is sold of
him. That is because it is like the severance of a partner, and a partner
can only make a settlement for a partner of the one who is mukatab with
the permission of his partners because what is sold of him does not
give him complete rights as a free man and his property is barred from
him, and by buying part of himself, it is feared that he will become
incapable of completing payment because of what he had to spend. That
is not like the mukatab buying himself completely unless whoever has
some of the kitaba remaining due to him gives him permission. If they
give him permission, he is more entitled to what is sold of him."
Malik said, "Selling one of the instalments of a mukatab is not halal.
That is because it Is an uncertain transaction. If the mukatab cannot
pay it, what he owes is nullified. If he dies or goes bankrupt and he
owes debts to people, then the person who bought his instalment does
not take any of his portion with the creditors. The person who buys
one of the instalments of the mukatab is in the position of the master
of the mukatab. The master of the mukatab does not have a share with
the creditors of the mukatab for what he is owed of the kitaba of his
slave. It is also like that with the kharaj, (a set amount deducted
daily from the slave against his earnings), which accumulates for a
master from the earnings of his slave. The creditors of his slave do
not allow him a share for what has accumulated for him from those deductions."
Malik said, "There is no harm in a mukatab paying off his kitaba with
coin or merchandise other than the merchandise for which he wrote his
kitaba if it is identical with it, on time (for the instalment) or delayed.
Malik said that if a mukatab died and left an umm walad and small
children by her or by someone else and they could not work and it was
feared that they would be unable to fulfil their kitaba, the umm walad
of the father was sold if her price would pay all the kitaba for them,
whether or not she was their mother. They were paid for and set free
because their father did not forbid her sale if he feared that he would
be unable to complete his kitaba. If her price would not pay for them
and neither she nor they could work, they all reverted to being slaves
of the master.
Malik said, "What is done among us in the case of a person who buys
the kitaba of a mukatab, and then the mukatab dies before he has paid
his kitaba, is that the person who bought the kitaba inherits from him.
If, rather than dying, the mukatab cannot pay, the buyer has his person.
If the mukatab pays his kitaba to the person who bought him and he is
freed, his wala' goes to the person who wrote the kitaba and the person
who bought his kitaba does not have any of it."
Section: The Labour of Mukatabs
Book 39, Number 39.6.8:
Malik related to me that he heard that Urwa ibn az-Zubayr and Sulayman
ibn Yasar when asked whether the sons of a man, who had a kitaba written
for himself and his children and then died, worked for the kitaba of
their father or were slaves, said, "They work for the kitaba of their
father and they have no reduction at all for the death of their father."
Malik said, "If they are small and unable to work, one does not wait
for them to grow up and they are slaves of their father's master unless
the mukatab has left what will pay their instalments for them until
they can work. If there is enough to pay for them in what he has left,
that is paid for on their behalf and they are left in their condition
until they can work, and then if they pay, they are free. If they cannot
do it, they are slaves."
Malik spoke about a mukatab who died and left property which was not
enough to pay his kitaba, and he also left a child with him in his kitaba
and an umm walad, and the umm walad wanted to work for them. He said,
"The money is paid to her if she is trustworthy with it and strong enough
to work. If she is not strong enough to work and not trustworthy with
property, she is not given any of it and she and the children of the
mukatab revert to being slaves of the master of the mukatab."
Malik said, "If people are written together in one kitaba and there
is no kinship between them, and some of them are incapable and others
work until they are all set free, those who worked can claim from those
who were unable, the portion of what they paid for them because some
of them assumed the responsibility for others."
Section: Freeing a Mukatab if he Pays what he Owes before the End of the
Book 39, Number 39.7.9:
Malik related to me that he heard Rabia ibn Abi Abd ar-Rahman and
others mention that al-Furafisa ibn Umar al-Hanafi had a mukatab who
offered to pay him all of his kitaba that he owed. Al-Furafisa refused
to accept it and the mukatab went to Marwan ibn al-Hakam who was the
amir of Madina and brought up the matter. Marwan summoned al-Furafisa
and told him to accept. He refused. Marwan then ordered that the payment
be taken from the mukatab and placed in the treasury. He said to the
mukatab "Go, you are free." When al-Furafisa saw that, he took the money.
Malik said, "What is done among us when a mukatab pays all the instalments
he owes before their term, is that it is permitted to him. The master
cannot refuse him that. That is because payment removes every condition
from the mukatab as well as service and travel. The setting free of
a man is not complete while he has any remaining slavery, and neither
would his inviolability as a free man be complete and his testimony
permitted and inheritance obliged and such things in that situation.
His master must not make any stipulation of service on him after he
has been set free."
Malik said that it was permitted for a mukatab who became extremely
ill and wanted to pay his master all his instalments because his heirs
who were free would then inherit from him and he had no children with
him in his kitaba, to do so, because by that he completed his inviolability
as a free man, his testimony was permitted, and his admission of what
he owed of debts to people was permitted. His bequest was permitted
as well. His master could not refuse him that by saying, "He is escaping
from me with his property."
Section: The Inheritance of a Mukatab when he is Set Free
Book 39, Number 39.8.10:
Malik related to me that he had heard that Said ibn al-Musayyab was
asked about a mukatab who was shared between two men. One of them freed
his portion and then the mukatab died and left a lot of money. Said
replied, "The one who kept his kitaba is paid what remains due to him,
and then they divide what is left between them both equally."
Malik said, "When a mukatab who fulfils his kitaba and becomes free
dies, he is inherited from by the people who wrote his kitaba and their
children and paternal relations - whoever is most deserving."
He said, "This is also for whoever is set free when he dies after
being set free - his inheritance is for the nearest people to him of
children or paternal relations who inherit by means of the wala'."
Malik said, "Brothers, written together in the same kitaba, are in
the same position as children to each other when none of them have children
written in the kitaba or born in the kitaba. When one of them dies and
leaves property, he pays for them all that is against them of their
kitaba and sets them free. The money left over after that goes to his
children rather than his brothers."
Section: Conditions Concerning Mukatabs
Book 39, Number 39.9.11:
Malik spoke to me about a man who wrote a kitaba for his slave for
gold or silver and stipulated against him in his kitaba a journey, service,
sacrifice or similar, which he specified by its name, and then the mukatab
was able to pay all his instalments before the end of the term.
He said, "If he pays all his instalments and he is set free and his
inviolability as a free man is complete, but he still has this condition
to fulfil, the condition is examined, and whatever involves his person
in it, like service or a journey etc., is removed from him and his master
has nothing in it. Whatever there is of sacrifice, clothing, or anything
that he must pay, that is in the position of dinars and dirhams, and
is valued and he pays it along with his instalments, and he is not free
until he has paid that along with his instalments."
Malik said, "The generally agreed-on way of doing things among us
about which there is no dispute, is that a mukatab is in the same position
as a slave whom his master will free after a service of ten years. If
the master who will free him dies before ten years, what remains of
his service goes to his heirs and his wala' goes to the one who contracted
to free him and to his male children or paternal relations."
Malik spoke about a man who stipulated against his mukatab that he
could not travel, marry, or leave his land without his permission, and
that if he did so without his permission it was in his power to cancel
the kitaba. He said, "If the mukatab does any of these things it is
not in the man's power to cancel the kitaba. Let the master put that
before the Sultan. The mukatab, however, should not marry, travel, or
leave the land of his master without his permission, whether or not
he stipulates that. That is because the man may write a kitaba for his
slave for 100 dinars and the slave may have 1000 dinars or more than
that. He goes off and marries a woman and pays her bride-price which
sweeps away his money and then he cannot pay. He reverts to his master
as a slave who has no property. Or else he may travel and his instalments
fall due while he is away. He cannot do that and kitaba is not to be
based on that. That is in the hand of his master. If he wishes, he gives
him permission in that. If he wishes, he refuses it."
Section: The Wala' of the Mukatab when he is Set Free
Book 39, Number 39.10.12:
Malik said, "When a mukatab sets his own slaves free, it is only permitted
for a mukatab to set his own slaves free with the consent of his master.
If his master gives his consent and the mukatab sets his slave free,
his wala' goes to the mukatab . If the mukatab then dies before he has
been set free himself, the wala' of the freed slave goes to the master
of the mukatab. If the freed one dies before the mukatab has been set
free, the master of the mukatab inherits from him."
Malik said, "It is like that also when a mukatab gives his slave a
kitaba and his mukatab is set free before he is himself. The wala' goes
to the master of the mukatab as long as he is not free. If this one
who wrote the kitaba is set free, then the wala' of his mukatab who
was freed before him reverts to him. If the first mukatab dies before
he pays, or he cannot pay his kitaba and he has free children, they
do not inherit the wala' of their father's mukatab because the wala'
has not been established for their father and he does not have the wala'
until he is free."
Malik spoke about a mukatab who was shared between two men and one
of them forewent what the mukatab owed him and the other insisted on
his due. Then the mukatab died and left property.
Malik said, "The one who did not abandon any of what he was owed,
is paid in full. Then the property is divided between them both just
as if a slave had died because what the first one did was not setting
him free. He only abandoned a debt that was owed to him ."
Malik said, "One clarification of that is that when a man dies and
leaves a mukatab and he also leaves male and female children and one
of the children frees his portion of the mukatab, that does not establish
any of the wala' for him. Had it been a true setting free, the wala'
would have been established for whichever men and women freed him."
Malik said, "Another clarification of that is that if one of them
freed his portion and then the mukatab could not pay, the value of what
was left of the mukatab would be altered because of the one who freed
his portion. Had it been a true setting-free, his estimated value would
have been taken from the property of the one who set free until he had
been set completely free as the Messenger of Allah, may Allah bless
him and grant him peace, said, 'Whoever frees his share in a slave and
has money to cover the full price of the slave, justly evaluated for
him, gives his partners their shares. If not, he frees of him what he
frees.' " (See Book 37 hadith 1).
He said, "Another clarification of that is that part of the sunna
of the muslims in which there is no dispute, is that whoever frees his
share of a mukatab, the mukatab is not set fully free using his property.
Had he been truly set free, the wala' would have been his alone rather
than his partners. Part of what will clarify that also is that part
of the sunna of the muslims is that the wala' belongs to whoever writes
the contract of kitaba. The women who inherit from the master of the
mukatab do not have any of the wala' of the mukatab. If they free any
of their share, the wala' belongs to the male children of the master
of the mukatab or his male paternal relations."
Section: What is Not Permitted in Freeing a Mukatab
Book 39, Number 39.11.13:
Malik said, "If people are together in one kitaba, their master cannot
free one of them without consulting his companions who are with him
in the kitaba and obtaining their consent. If they are young, however,
their consultation means nothing and it is not permitted to them. That
is because a man might work for all the people and he might pay their
kitaba for them to complete their freedom. Their master approaches the
one who will pay for them and their rescue from slavery is through him.
He frees him and so makes those who remain unable to pay. He does it
intending benefit and increase for himself. It is not permitted for
him to do that to those of them who remain. The Messenger of Allah,
may Allah bless him and grant him peace, said, 'There must be no harm
nor return of harm.' This is the most severe harm."
Malik said about slaves who wrote a kitaba together that it was permitted
for their master to free the old and exhausted of them and the young
when neither of them could pay anything, and there was no help nor strength
to be had from any of them in their kitaba.
Book 39, Number 39.11.14:
Malik said about a man who had his slave in a kitaba and then the
mukatab died and left his umm walad, and there remained for him some
of his kitaba to pay and he left what would pay it, "The umm walad is
a slave since the mukatab was not freed until he died and he did not
leave children that were set free by his paying what remained, so that
the umm walad of their father was freed by their being set free."
Malik said about a mukatab who set free a slave of his or gave sadaqa
with some of his property and his master did not know that until he
had set the mukatab free, "That has been performed by him and the master
does not rescind it. If the master of the mukatab knows before he sets
the mukatab free, he can reject that and not permit it. If the mukatab
is then freed and it becomes in his power to do so, he does not have
to free the slave, nor give the sadaqa unless he does it voluntarily
Section: Bequests involving Mukatabs
Book 39, Number 39.12.15:
Malik said, The best of what I have heard about a mukatab whose master
frees him at death, is that the mukatab is valued according to what
he would fetch if he were sold. If that value is less than what remains
against him of his kitaba, his freedom is taken from the third that
the deceased can bequeath. One does not look at the number of dirhams
which remain against him in his kitaba. That is because had he been
killed, his killer would not be in debt for other than his value on
the day he killed him. Had he been injured, the one who injured him
would not be liable for other than the blood-money of the injury on
the day of his injury. One does not look at how much he has paid of
dinars and dirhams of the contract he has written because he is a slave
as long as any of his kitaba remains. If what remains in his kitaba
is less than his value, only whatever of his kitaba remains owing from
him is taken into account in the third of the property of the deceased.
That is because the deceased left him what remains of his kitaba and
so it becomes a bequest which the deceased made."
Malik said, "The illustration of that is that if the price of the
mukatab is one thousand dirhams, and only one hundred dirhams remain
of his kitaba, his master leaves him the one hundred dirhams which complete
it for him. It is taken into account in the third of his master and
by it he becomes free."
Malik said that if a man wrote his slave a kitaba at his death, the
value of the slave was estimated. If there was enough to cover the price
of the slave in one third of his property, that was permitted for him.
Malik said, "The illustration of that is that the price of the slave
is one thousand dinars. His master writes him a kitaba for two hundred
dinars at his death. The third of the property of his master is one
thousand dinars, so that is permitted for him. It is only a bequest
which he makes from one third of his property. If the master has left
bequests to people, and there is no surplus in the third after the value
of the mukatab, one begins with the mukatab because the kitaba is setting
free, and setting free has priority over bequests. When those bequests
are paid from the kitaba of the mukatab, they follow it. The heirs of
the testator have a choice. If they want to give the people with bequests
all their bequests and the kitaba of the mukatab is theirs, they have
that. If they refuse and hand over the mukatab and what he owes to the
people with bequests they can do that, because the third commences with
the mukatab and because all the bequests which he makes are as one."
If the heirs then say, "What our fellow bequeathed was more than one
third of his property and he has taken what was not his," Malik said,
"His heirs choose. It is said to them, 'Your companion has made the
bequests you know about and if you would like to give them to those
who are to receive them according to the deceased's bequests, then do
so. If not, hand over to the people with bequests one third of the total
property of the deceased.' "
Malik continued, "If the heirs surrender the mukatab to the people
with bequests, the people with bequests have what he owes of his kitaba.
If the mukatab pays what he owes of his kitaba, they take that in their
bequests according to their shares. If the mukatab cannot pay, he is
a slave of the people with bequests and does not return to the heirs
because they gave him up when they made their choice, and because when
he was surrendered to the people with bequests, they were liable. If
he died, they would not have anything against the heirs. If the mukatab
dies before he pays his kitaba and he leaves property which is more
than what he owes, his property goes to the people with bequests. If
the mukatab pays what he owes, he is free and his wala' returns to the
paternal relations of the one who wrote the kitaba for him."
Malik spoke about a mukatab who owed his master ten thousand dirhams
in his kitaba, and when he died he remitted one thousand dirhams from
it. He said, "The mukatab is valued and his value is taken into consideration.
If his value is one thousand dirhams and the reduction is a tenth of
the kitaba, that portion of the slave's price is one hundred dirhams.
It is a tenth of the price. A tenth of the kitaba is therefore reduced
for him. That is converted to a tenth of the price in cash. That is
as if he had had all of what he owed reduced for him. Had he done that,
only the value of the slave - one thousand dirhams - would have been
taken into account in the third of the property of the deceased. If
that which he had remitted is half of the kitaba, half the price is
taken into account in the third of the property of the deceased. If
it is more or less than that, it is according to this reckoning."
Malik said, "When a man reduces the kitaba of his mukatab by one thousand
dirhams at his death from a kitaba of ten thousand dirhams, and he does
not stipulate whether it is from the beginning or the end of his kitaba,
each instalment is reduced for him by one tenth."
Malik said, "If a man remits one thousand dirhams from his mukatab
at his death from the beginning or end of his kitaba, and the original
basis of the kitaba is three thousand dirhams, the mukatab's cash value
is estimated. Then that value is divided. That thousand which is from
the beginning of the kitaba is converted into its portion of the price
according to its proximity to the term and its precedence and then the
thousand which follows the first thousand is according to its precedence
also until it comes to its end, and every thousand is paid according
to its place in advancing and deferring the term because what is deferred
of that is less in respect of its price. Then it is placed in the third
of the deceased according to whatever of the price befalls that thousand
according to the difference in preference of that, whether it is more
or less, then it is according to this reckoning."
Malik spoke about a man who willed a man a fourth of a mukatab or
freed a fourth, and then the man died and the mukatab died and left
a lot of property, more than he owed. He said, "The heirs of the first
master and the one who was willed a fourth of the mukatab are given
what they are still owed by the mukatab. Then they divide what is left
over, and the one willed a fourth has a third of what is left after
the kitaba is paid. The heirs of his master gets two-thirds. That is
because the mukatab is a slave as long as any of his kitaba remains
to be paid. He is inherited from by the possession of his person."
Malik said about a mukatab whose master freed him at death, "If the
third of the deceased will not cover him, he is freed from it according
to what the third will cover and his kitaba is decreased according to
that. If the mukatab owed five thousand dirhams and his value is two
thousand dirhams cash, and the third of the deceased is one thousand
dirhams, half of him is freed and half of the kitaba has been reduced
for him." Malik said about a man who said in his will, "My slave so-and-so
is free and write a kitaba for so-and-so", that the setting free had
priority over the kitaba.