The Mukatab

Malik related to me from Nafi that Abdullah ibn Umar said, "Amukatab is a slave as long as any of his kitaba remains to be paid."

Malik related to me that he had heard that Urwa ibn az-Zubayr andSulayman ibn Yasar said, "The mukatab is a slave as long as any of hiskitaba remains to be paid."Malik said, "This is my opinionas well."Malik said, "If a mukatab dies and leaves moreproperty than what remains to be paid of his kitaba and he haschildren who were born during the time of his kitaba or whose kitabahas been written as well, they inherit any property that remains afterthe kitaba has been paid."

Malik related to me from Humayd ibn Qays al-Makki that a son ofal-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 lefta daughter. The governor of Makka was not certain about how to judgein the case, so he wrote to Abd al-Malik ibn Marwan to ask him aboutit. 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 ofthe property between the daughter and the master."Maliksaid, "What is done among us is that the master of a slave does nothave to give his slave a kitaba if he asks for it. I have not heard ofany of the Imams forcing a man to give a kitaba to his slave. I heardthat one of the people of knowledge, when someone asked about that andmentioned that Allah the Blessed, the Exalted, said, 'Give them theirkitaba, if you know some good in them' (Sura 24 ayat 33) recited thesetwo ayats, 'When you are free of the state of ihram, then hunt forgame.' (Sura 5 ayat 3) 'When the prayer is finished, scatter in theland and seek Allah's favour.' " (Sura 62 ayat 10)Malikcommented, "It is a way of doing things for which Allah, the Mighty,the Majestic, has given permission to people, and it is not obligatoryfor them." Malik said, "I heard one of the people of knowledge sayabout the word of Allah, the Blessed, the Exalted, 'Give them of thewealth which Allah has given you,' that it meant that a man give hisslave a kitaba and then reduce the end of his kitaba for him by somespecific amount."Malik said, "This is what I have heard fromthe people of knowledge and what I see people doing here."Malik said, "I have heard that Abdullah ibn Umar gave one of hisslaves his kitaba for 35,000 dirhams, and then reduced the end of hiskitaba by 5,000 dirhams."Malik said, "What is done among usis that when a master gives a mukatab his kitaba, the mukatab'sproperty goes with him but his children do not go with him unless hestipulates that in his kitaba."Yahya said, "I heard Maliksay 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 thaton the day he was given his kitaba, the child did not follow himbecause 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 hisproperty."Malik said that if a man and his wife's son (byanother husband) inherited a mukatab from the wife and the mukatabdied before he had completed his kitaba, they divided his inheritancebetween them according to the Book of Allah. If the slave paid hiskitaba and then died, his inheritance went to the son of the woman,and the husband had nothing of his inheritance.Malik saidthat if a mukatab gave his own slave a kitaba, the situation waslooked at. If he wanted to do his slave a favour and it was obvious byhis making it easy for him, that was not permitted. If he was givinghim a kitaba from desire to find money to pay off his own kitaba, thatwas permitted for him.Malik said that if a man hadintercourse with a mukataba of his and she became pregnant by him, shehad 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 hadher kitaba.Malik said, "The generally agreed on way of doingthings among us about a slave who is owned by two men is that one ofthem does not give a kitaba for his share, whether or not hiscompanion gives him permission to do so, unless they both write thekitaba together, because that alone would effect setting him free. Ifthe slave were to fulfil what he had agreed on to free half ofhimself, and then the one who had given a kitaba for half of him wasnot obliged to complete his setting free, that would be in oppositionto the words of the Messenger of Allah, may Allah bless him and granthim peace. 'If someone frees his share in a slave and has enough moneyto cover the full price of the slave, justly evaluated for him, hemust give his partners their shares, so the slave is completely free .' "Malik said, "If he is not aware of that until the mukatabhas met the terms or before he has met them the owner who has writtenhim the kitaba returns what he has taken from the mukatab to him, andthen he and his partner divide him according to their original sharesand the kitaba is invalid. He is the slave of both of them in hisoriginal state."Malik spoke about a mukatab who was owned bytwo men and one of them granted him a delay in the payment of theright which he was owed, and the other refused to defer it, and so theone who refused to defer the payment exacted his part of the due.Malik said that if the mukatab then died and left property which didnot complete his kitaba, "They divide it according to what they arestill owed by him. Each of them takes according to his share. If themukatab leaves more than his kitaba, each of them takes what remainsto them of the kitaba, and what remains after that is divided equallybetween them. If the mukatab is unable to pay his kitaba fully and theone who did not allow him to defer his payment has exacted more thanhis associate did, the slave is still divided equally between them,and he does not return to his associates the excess of what he hasexacted, because he only exacted his right with the permission of hisassociate. If one of them remits what is owed to him and then hisassociate exacts part of what he is owed by him and then the mukatabis unable to pay, he belongs to both of them. And the one who hasexacted something does not return anything because he only demandedwhat he was owed. That is like the debt of two men in one writingagainst one man. One of them grants him time to pay and the other isgreedy and exacts his due. Then the debtor goes bankrupt. The one whoexacted his due does not have to return any of what he took."

Malik said, "The generally agreed on way of doing things among usis that when slaves write their kitaba together in one kitaba, andsome are responsible for others, and they are not reduced anything bythe 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 whateverwork he can do and they help each other with that in their kitabauntil they are freed, if they are freed, or remain slaves if theyremain slaves."Malik said, "The generally agreed on way ofdoing things among us is that when a master gives a slave his kitaba,it is not permitted for the master to let anyone assume theresponsibility for the kitaba of his slave if the slave dies or isincapable. This is not part of the sunna of the muslims. That isbecause when a man assumes responsibility to the master of a mukatabfor what the mukatab owes of his kitaba, and then the master of themukatab pursues that from the one who assumes the responsibility, hetakes his money falsely. It is not as if he is buying the mukatab, sothat what he gives is part of the price of something that is his, andneither is the mukatab being freed so that the price established forhim buys his inviolability as a free man. If the mukatab is unable tomeet the payments he reverts to his master and is his slave. That isbecause kitaba is not a fixed debt which can be assumed by the masterof 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 notone of the creditors for what remains unpaid of the kitaba. Thecreditors have precedence over the master. If the mukatab cannot meetthe payments, and he owes debts to people, he reverts to being a slaveowned by his master and the debts to the people are the liability ofthe mukatab. The creditors do not enter with the master into any shareof the price of his person."Malik said, "When people arewritten together in one kitaba and there is no kinship between them bywhich they inherit from each other, and some of them are responsiblefor others, then none of them are freed before the others until allthe kitaba has been paid. If one of them dies and leaves property andit is more than all of what is against them, it pays all that isagainst them . The excess of the property goes to the master, and noneof those who have been written in the kitaba with the deceased haveany of the excess. The master's claims are overshadowed by theirclaims for the portions which remain against them of the kitaba whichcan be fulfilled from the property of the deceased, because thedeceased had assumed their responsibility and they must use hisproperty to pay for their freedom. If the deceased mukatab has a freechild not born in kitaba and who was not written in the kitaba, itdoes not inherit from him because the mukatab was not freed until hedied."

Malik related to me that he heard that Umm Salama, the wife ofthe Prophet, may Allah bless him and grant him peace, made asettlement with her mukatab for an agreed amount of gold and silver.Malik said, "The generally agreed on way of doing thingsamong us in the case of a mukatab who is shared by two partners, isthat one of them cannot make a settlement with him for an agreed priceaccording to his portion without the consent of his partner. That isbecause the slave and his property are owned by both of them, and soone of them is not permitted to take any of the property except withthe consent of his partner. If one of them settled with the mukataband his partner did not, and he took the agreed price, and then themukatab died while he had property or was unable to pay, the one whosettled would not have anything of the mukatab's property and he couldnot return that for which he made settlement so that his right to theslave's person would return to him. However, when someone settles witha mukatab with the permission of his partner and then the mukatab isunable to pay, it is preferable that the one who broke with him returnwhat he has taken from the mukatab for the severance and he can haveback his portion of the mukatab. He can do that. If the mukatab diesand leaves property, the partner who has kept hold of the kitaba ispaid in full the amount of the kitaba which remains to him against themukatab from the mukatab's property. Then what remains of property ofthe mukatab is between the partner who broke with him and his partner,according to their shares in the mukatab. If one of the partnersbreaks off with him and the other keeps the kitaba, and the mukatab isunable to pay, it is said to the partner who settled with him, 'If youwish to give your partner half of what you took so the slave isdivided between you, then do so. If you refuse, then all of the slavebelongs to the one who held on to possession of the slave.' "Malik spoke about a mukatab who was shared between two men and one ofthem made a settlement with him with the permission of his partner.Then the one who retained possession of the slave demanded the like ofthat for which his partner had settled or more than that and themukatab could not pay it. He said, "The mukatab is shared between thembecause the man has only demanded what is owed to him. If he demandsless than what the one who settled with him took and the mukatab cannot manage that, and the one who settled with him prefers to return tohis partner half of what he took so the slave is divided in halvesbetween them, he can do that. If he refuses then all of the slavebelongs to the one who did not settle with him. If the mukatab diesand leaves property, and the one who settled with him prefers toreturn to his companion half of what he has taken so the inheritanceis divided between them, he can do that. If the one who has kept thekitaba takes the like of what the one who has settled with him took,or more, the inheritance is between them according to their shares inthe slave because he is only taking his right."Malik spokeabout a mukatab who was shared between two men and one of them made asettlement with him for half of what was due to him with thepermission of his partner, and then the one who retained possession ofthe slave took less than what his partner settled with him for and themukatab was unable to pay. He said, "If the one who made a settlementwith the slave prefers to return half of what he was awarded to hispartner, the slave is divided between them. If he refuses to returnit, the one who retained possession has the portion of the share forwhich his partner made a settlement with the mukatab."Maliksaid, "The explanation of that is that the slave is divided in twohalves between them. They write him a kitaba together and then one ofthem makes a settlement with the mukatab for half his due with thepermission of his partner. That is a fourth of all the slave. Then themukatab is unable to continue, so it is said to the one who settledwith him, 'If you wish, return to your partner half of what you wereawarded 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 partnerfor 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 brokeoff has a fourth of the slave because he refused to return theequivalent of the fourth share for which he settled."Malikspoke about a mukatab whose master made a settlement with him and sethim free and what remained of his severance was written against him asdebt, then the mukatab died and people had debts against him. He said,"His master does not share with the creditors because of what he isowed from the severance. The creditors begin first."Maliksaid, "A mukatab cannot break with his master when he owes debts topeople. He would be set free and have nothing because the people whohold the debts are more entitled to his property than his master. Thatis not permitted for him."Malik said, "According to the waythings are done among us, there is no harm if a man gives a kitaba tohis slave and settles with him for gold and reduces what he is owed ofthe kitaba provided that only the gold is paid immediately. Whoeverdisapproves of that does so because he puts it in the category of adebt which a man has against another man for a set term. He gives hima reduction and he pays it immediately. This is not like that debt.The breaking of the mukatab with his master is dependent on his givingmoney to speed up the setting free. Inheritance, testimony and thehudud are obliged for him and the inviolability of being set free isestablished for him. He is not buying dirhams for dirhams or gold forgold. Rather it is like a man who having said to his slave, 'Bring mesuch-and-such an amount of dinars and you are free', then reduces thatfor him, saying, 'If you bring me less than that, you are free.' Thatis not a fixed debt. Had it been a fixed debt, the master would haveshared with the creditors of the mukatab when he died or wentbankrupt. His claim on the property of the mukatab would join theirs."

Malik said, "The best of what I have heard about a mukatab whoinjures a man so that blood-money must be paid, is that if the mukatabcan 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 payhis kitaba because he must pay the blood-money of that injury beforethe kitaba, and he cannot pay the blood-money of that injury, then hismaster has an option. If he prefers to pay the blood-money of thatinjury, 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 ofthem caused an injury which entailed blood-money. He said, "If any ofthem does an injury involving blood-money, he and those who are withhim 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 slavesrevert to him. If he wishes, he can surrender the one who did theinjury alone and all the others revert to being his slaves since theycould not pay the blood-money of the injury which their companioncaused."Malik said, "The way of doing things about whichthere is no dispute among us, is that when a mukatab is injured insome way which entails blood-money or one of the mukatab's childrenwho is written with him in the kitaba is injured, their blood-money isthe blood-money of slaves of their value, and what is appointed tothem as their blood-money is paid to the master who has the kitaba andhe reckons that for the mukatab at the end of his kitaba and there isa reduction for the blood-money that the master has taken for theinjury."Malik said, "The explanation of that is say, forexample, he has written his kitaba for three thousand dirhams and theblood-money taken by the master for his injury is one thousanddirhams. When the mukatab has paid his master two thousand dirhams heis free. If what remains of his kitaba is one thousand dirhams and theblood-money for his injury is one thousand dirhams, he is freestraightaway. If the blood-money of the injury is more than whatremains of the kitaba, the master of the mukatab takes what remains ofhis kitaba and frees him. What remains after the payment of the kitababelongs 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 hecould not pay his kitaba completely he would then return to his masterone eyed, with a hand cut off, or crippled in body. His master onlywrote his kitaba against his property and earnings, and he did notwrite his kitaba so that he would take the blood-money for whathappened to his child or to himself and use it up and consume it. Onepays the blood-money of injuries to a mukatab and his children who areborn in his kitaba, or their kitaba is written, to the master and hetakes it into account for him at the end of his kitaba."

Malik said, "The best of what is said about a man who buys themukatab of a man is that if the man wrote the slave's kitaba fordinars or dirhams, he does not sell him unless it is for merchandisewhich 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 certainmerchandise of camels, cattle, sheep, or slaves, it is more correctthat the buyer buy him for gold, silver, or different goods than theones his master wrote the kitaba for, and that must be paidimmediately, not deferred."Malik said, "The best of what Ihave heard about a mukatab when he is sold is that he is more entitledto buy his kitaba than the one who buys him if he can pay his masterthe price for which he was sold in cash. That is because his buyinghimself is his freedom, and freedom has priority over what bequestsaccompany it. If one of those who have written the kitaba for themukatab 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 havethe right of pre-emption in what is sold of him. That is because it islike the severance of a partner, and a partner can only make asettlement for a partner of the one who is mukatab with the permissionof his partners because what is sold of him does not give him completerights as a free man and his property is barred from him, and bybuying part of himself, it is feared that he will become incapable ofcompleting payment because of what he had to spend. That is not likethe mukatab buying himself completely unless whoever has some of thekitaba remaining due to him gives him permission. If they give himpermission, 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 cannotpay it, what he owes is nullified. If he dies or goes bankrupt and heowes debts to people, then the person who bought his instalment doesnot take any of his portion with the creditors. The person who buysone of the instalments of the mukatab is in the position of the masterof the mukatab. The master of the mukatab does not have a share withthe creditors of the mukatab for what he is owed of the kitaba of hisslave. It is also like that with the kharaj, (a set amount deducteddaily from the slave against his earnings), which accumulates for amaster from the earnings of his slave. The creditors of his slave donot allow him a share for what has accumulated for him from thosedeductions."Malik said, "There is no harm in a mukatabpaying off his kitaba with coin or merchandise other than themerchandise for which he wrote his kitaba if it is identical with it,on time (for the instalment) or delayed. "Malik said that ifa mukatab died and left an umm walad and small children by her or bysomeone else and they could not work and it was feared that they wouldbe unable to fulfil their kitaba, the umm walad of the father was soldif her price would pay all the kitaba for them, whether or not she wastheir mother. They were paid for and set free because their father didnot forbid her sale if he feared that he would be unable to completehis kitaba. If her price would not pay for them and neither she northey could work, they all reverted to being slaves of the master.Malik said, "What is done among us in the case of a person whobuys the kitaba of a mukatab, and then the mukatab dies before he haspaid his kitaba, is that the person who bought the kitaba inheritsfrom him. If, rather than dying, the mukatab cannot pay, the buyer hashis person. If the mukatab pays his kitaba to the person who boughthim and he is freed, his wala' goes to the person who wrote the kitabaand the person who bought his kitaba does not have any of it."

Malik related to me that he heard that Urwa ibn az-Zubayr andSulayman ibn Yasar when asked whether the sons of a man, who had akitaba written for himself and his children and then died, worked forthe kitaba of their father or were slaves, said, "They work for thekitaba of their father and they have no reduction at all for the deathof their father."Malik said, "If they are small and unableto work, one does not wait for them to grow up and they are slaves oftheir father's master unless the mukatab has left what will pay theirinstalments for them until they can work. If there is enough to payfor them in what he has left, that is paid for on their behalf andthey are left in their condition until they can work, and then if theypay, they are free. If they cannot do it, they are slaves."Malik spoke about a mukatab who died and left property which was notenough to pay his kitaba, and he also left a child with him in hiskitaba and an umm walad, and the umm walad wanted to work for them. Hesaid, "The money is paid to her if she is trustworthy with it andstrong enough to work. If she is not strong enough to work and nottrustworthy with property, she is not given any of it and she and thechildren of the mukatab revert to being slaves of the master of themukatab."Malik said, "If people are written together in onekitaba and there is no kinship between them, and some of them areincapable and others work until they are all set free, those whoworked can claim from those who were unable, the portion of what theypaid for them because some of them assumed the responsibility forothers."

Malik related to me that he heard Rabia ibn Abi Abd ar-Rahman andothers mention that al-Furafisa ibn Umar al-Hanafi had a mukatab whooffered to pay him all of his kitaba that he owed. Al-Furafisa refusedto accept it and the mukatab went to Marwan ibn al-Hakam who was theamir of Madina and brought up the matter. Marwan summoned al-Furafisaand told him to accept. He refused. Marwan then ordered that thepayment be taken from the mukatab and placed in the treasury. He saidto the mukatab "Go, you are free." When al-Furafisa saw that, he tookthe money.Malik said, "What is done among us when a mukatabpays all the instalments he owes before their term, is that it ispermitted to him. The master cannot refuse him that. That is becausepayment removes every condition from the mukatab as well as serviceand travel. The setting free of a man is not complete while he has anyremaining slavery, and neither would his inviolability as a free manbe complete and his testimony permitted and inheritance obliged andsuch things in that situation. His master must not make anystipulation of service on him after he has been set free."Malik said that it was permitted for a mukatab who became extremelyill and wanted to pay his master all his instalments because his heirswho were free would then inherit from him and he had no children withhim in his kitaba, to do so, because by that he completed hisinviolability as a free man, his testimony was permitted, and hisadmission of what he owed of debts to people was permitted. Hisbequest was permitted as well. His master could not refuse him that bysaying, "He is escaping from me with his property."

Malik related to me that he had heard that Said ibn al-Musayyabwas asked about a mukatab who was shared between two men. One of themfreed 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 tohim, and then they divide what is left between them both equally."Malik said, "When a mukatab who fulfils his kitaba andbecomes free dies, he is inherited from by the people who wrote hiskitaba and their children and paternal relations - whoever is mostdeserving."He said, "This is also for whoever is set freewhen he dies after being set free - his inheritance is for the nearestpeople to him of children or paternal relations who inherit by meansof the wala'."Malik said, "Brothers, written together in thesame kitaba, are in the same position as children to each other whennone of them have children written in the kitaba or born in thekitaba. When one of them dies and leaves property, he pays for themall that is against them of their kitaba and sets them free. The moneyleft over after that goes to his children rather than his brothers."

Malik spoke to me about a man who wrote a kitaba for his slavefor gold or silver and stipulated against him in his kitaba a journey,service, sacrifice or similar, which he specified by its name, andthen the mukatab was able to pay all his instalments before the end ofthe term.He said, "If he pays all his instalments and he isset free and his inviolability as a free man is complete, but he stillhas this condition to fulfil, the condition is examined, and whateverinvolves his person in it, like service or a journey etc., is removedfrom him and his master has nothing in it. Whatever there is ofsacrifice, clothing, or anything that he must pay, that is in theposition of dinars and dirhams, and is valued and he pays it alongwith his instalments, and he is not free until he has paid that alongwith his instalments."Malik said, "The generally agreed-onway of doing things among us about which there is no dispute, is thata mukatab is in the same position as a slave whom his master will freeafter a service of ten years. If the master who will free him diesbefore ten years, what remains of his service goes to his heirs andhis wala' goes to the one who contracted to free him and to his malechildren or paternal relations."Malik spoke about a man whostipulated against his mukatab that he could not travel, marry, orleave his land without his permission, and that if he did so withouthis permission it was in his power to cancel the kitaba. He said, "Ifthe mukatab does any of these things it is not in the man's power tocancel the kitaba. Let the master put that before the Sultan. Themukatab, however, should not marry, travel, or leave the land of hismaster without his permission, whether or not he stipulates that. Thatis because the man may write a kitaba for his slave for 100 dinars andthe slave may have 1000 dinars or more than that. He goes off andmarries a woman and pays her bride-price which sweeps away his moneyand then he cannot pay. He reverts to his master as a slave who has noproperty. Or else he may travel and his instalments fall due while heis away. He cannot do that and kitaba is not to be based on that. Thatis in the hand of his master. If he wishes, he gives him permission inthat. If he wishes, he refuses it."

Malik said, "When a mukatab sets his own slaves free, it is onlypermitted for a mukatab to set his own slaves free with the consent ofhis master. If his master gives his consent and the mukatab sets hisslave free, his wala' goes to the mukatab . If the mukatab then diesbefore he has been set free himself, the wala' of the freed slave goesto the master of the mukatab. If the freed one dies before the mukatabhas been set free, the master of the mukatab inherits from him."Malik said, "It is like that also when a mukatab gives his slave akitaba 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 thisone who wrote the kitaba is set free, then the wala' of his mukatabwho was freed before him reverts to him. If the first mukatab diesbefore 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 thewala' has not been established for their father and he does not havethe wala' until he is free."Malik spoke about a mukatab whowas shared between two men and one of them forewent what the mukatabowed him and the other insisted on his due. Then the mukatab died andleft property.Malik said, "The one who did not abandon anyof what he was owed, is paid in full. Then the property is dividedbetween them both just as if a slave had died because what the firstone did was not setting him free. He only abandoned a debt that wasowed to him ."Malik said, "One clarification of that is thatwhen a man dies and leaves a mukatab and he also leaves male andfemale children and one of the children frees his portion of themukatab, that does not establish any of the wala' for him. Had it beena true setting free, the wala' would have been established forwhichever men and women freed him."Malik said, "Anotherclarification of that is that if one of them freed his portion andthen the mukatab could not pay, the value of what was left of themukatab would be altered because of the one who freed his portion. Hadit been a true setting-free, his estimated value would have been takenfrom the property of the one who set free until he had been setcompletely free as the Messenger of Allah, may Allah bless him andgrant him peace, said, 'Whoever frees his share in a slave and hasmoney to cover the full price of the slave, justly evaluated for him,gives his partners their shares. If not, he frees of him what hefrees.' " (See Book 37 hadith 1).He said, "Anotherclarification of that is that part of the sunna of the muslims inwhich there is no dispute, is that whoever frees his share of amukatab, the mukatab is not set fully free using his property. Had hebeen truly set free, the wala' would have been his alone rather thanhis partners. Part of what will clarify that also is that part of thesunna of the muslims is that the wala' belongs to whoever writes thecontract of kitaba. The women who inherit from the master of themukatab do not have any of the wala' of the mukatab. If they free anyof their share, the wala' belongs to the male children of the masterof the mukatab or his male paternal relations."

Malik said, "If people are together in one kitaba, their mastercannot free one of them without consulting his companions who are withhim in the kitaba and obtaining their consent. If they are young,however, their consultation means nothing and it is not permitted tothem. That is because a man might work for all the people and he mightpay their kitaba for them to complete their freedom. Their masterapproaches the one who will pay for them and their rescue from slaveryis through him. He frees him and so makes those who remain unable topay. He does it intending benefit and increase for himself. It is notpermitted for him to do that to those of them who remain. TheMessenger of Allah, may Allah bless him and grant him peace, said,'There must be no harm nor return of harm.' This is the most severeharm."Malik said about slaves who wrote a kitaba togetherthat it was permitted for their master to free the old and exhaustedof them and the young when neither of them could pay anything, andthere was no help nor strength to be had from any of them in theirkitaba.

Malik said about a man who had his slave in a kitaba and then themukatab died and left his umm walad, and there remained for him someof his kitaba to pay and he left what would pay it, "The umm walad isa slave since the mukatab was not freed until he died and he did notleave children that were set free by his paying what remained, so thatthe 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 gavesadaqa with some of his property and his master did not know thatuntil he had set the mukatab free, "That has been performed by him andthe master does not rescind it. If the master of the mukatab knowsbefore 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, hedoes not have to free the slave, nor give the sadaqa unless he does itvoluntarily from himself."

Malik said, The best of what I have heard about a mukatab whosemaster frees him at death, is that the mukatab is valued according towhat he would fetch if he were sold. If that value is less than whatremains against him of his kitaba, his freedom is taken from the thirdthat the deceased can bequeath. One does not look at the number ofdirhams which remain against him in his kitaba. That is because had hebeen killed, his killer would not be in debt for other than his valueon the day he killed him. Had he been injured, the one who injured himwould not be liable for other than the blood-money of the injury onthe day of his injury. One does not look at how much he has paid ofdinars and dirhams of the contract he has written because he is aslave as long as any of his kitaba remains. If what remains in hiskitaba is less than his value, only whatever of his kitaba remainsowing from him is taken into account in the third of the property ofthe deceased. That is because the deceased left him what remains ofhis kitaba and so it becomes a bequest which the deceased made."Malik said, "The illustration of that is that if the price of themukatab is one thousand dirhams, and only one hundred dirhams remainof his kitaba, his master leaves him the one hundred dirhams whichcomplete it for him. It is taken into account in the third of hismaster and by it he becomes free."Malik said that if a manwrote his slave a kitaba at his death, the value of the slave wasestimated. If there was enough to cover the price of the slave in onethird of his property, that was permitted for him.Maliksaid, "The illustration of that is that the price of the slave is onethousand dinars. His master writes him a kitaba for two hundred dinarsat his death. The third of the property of his master is one thousanddinars, so that is permitted for him. It is only a bequest which hemakes from one third of his property. If the master has left bequeststo people, and there is no surplus in the third after the value of themukatab, one begins with the mukatab because the kitaba is settingfree, and setting free has priority over bequests. When those bequestsare paid from the kitaba of the mukatab, they follow it. The heirs ofthe testator have a choice. If they want to give the people withbequests all their bequests and the kitaba of the mukatab is theirs,they have that. If they refuse and hand over the mukatab and what heowes to the people with bequests they can do that, because the thirdcommences with the mukatab and because all the bequests which he makesare as one."If the heirs then say, "What our fellowbequeathed was more than one third of his property and he has takenwhat 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 wouldlike to give them to those who are to receive them according to thedeceased's bequests, then do so. If not, hand over to the people withbequests one third of the total property of the deceased.' "Malik continued, "If the heirs surrender the mukatab to the peoplewith bequests, the people with bequests have what he owes of hiskitaba. If the mukatab pays what he owes of his kitaba, they take thatin their bequests according to their shares. If the mukatab cannotpay, he is a slave of the people with bequests and does not return tothe heirs because they gave him up when they made their choice, andbecause when he was surrendered to the people with bequests, they wereliable. If he died, they would not have anything against the heirs. Ifthe mukatab dies before he pays his kitaba and he leaves propertywhich is more than what he owes, his property goes to the people withbequests. 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 forhim."Malik spoke about a mukatab who owed his master tenthousand dirhams in his kitaba, and when he died he remitted onethousand dirhams from it. He said, "The mukatab is valued and hisvalue is taken into consideration. If his value is one thousanddirhams and the reduction is a tenth of the kitaba, that portion ofthe 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 convertedto a tenth of the price in cash. That is as if he had had all of whathe owed reduced for him. Had he done that, only the value of the slave- one thousand dirhams - would have been taken into account in thethird of the property of the deceased. If that which he had remittedis half of the kitaba, half the price is taken into account in thethird of the property of the deceased. If it is more or less thanthat, it is according to this reckoning."Malik said, "When aman reduces the kitaba of his mukatab by one thousand dirhams at hisdeath from a kitaba of ten thousand dirhams, and he does not stipulatewhether it is from the beginning or the end of his kitaba, eachinstalment is reduced for him by one tenth."Malik said, "Ifa man remits one thousand dirhams from his mukatab at his death fromthe beginning or end of his kitaba, and the original basis of thekitaba is three thousand dirhams, the mukatab's cash value isestimated. Then that value is divided. That thousand which is from thebeginning of the kitaba is converted into its portion of the priceaccording to its proximity to the term and its precedence and then thethousand which follows the first thousand is according to itsprecedence also until it comes to its end, and every thousand is paidaccording to its place in advancing and deferring the term becausewhat is deferred of that is less in respect of its price. Then it isplaced in the third of the deceased according to whatever of the pricebefalls that thousand according to the difference in preference ofthat, whether it is more or less, then it is according to thisreckoning."Malik spoke about a man who willed a man a fourthof a mukatab or freed a fourth, and then the man died and the mukatabdied and left a lot of property, more than he owed. He said, "Theheirs of the first master and the one who was willed a fourth of themukatab are given what they are still owed by the mukatab. Then theydivide what is left over, and the one willed a fourth has a third ofwhat is left after the kitaba is paid. The heirs of his master getstwo-thirds. That is because the mukatab is a slave as long as any ofhis kitaba remains to be paid. He is inherited from by the possessionof his person."Malik said about a mukatab whose master freedhim at death, "If the third of the deceased will not cover him, he isfreed from it according to what the third will cover and his kitaba isdecreased according to that. If the mukatab owed five thousand dirhamsand his value is two thousand dirhams cash, and the third of thedeceased is one thousand dirhams, half of him is freed and half of thekitaba has been reduced for him." Malik said about a man who said inhis 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.