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."
USC-MSA web (English) reference: Book 39, Hadith 3
Arabic reference: Book 39, Hadith 1494