Hadith 24756

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."