Hadith 26100

Yahya related to me from Malik that Yahya ibn Said said that AbuBakr ibn Muhammad ibn Amr ibn Hazm informed him that he had taken aNabatean who had stolen some iron rings and jailed him in order to cutoff his hand. Amra bint Abd ar-Rahman sent a girl mawla to him calledUmayya. Abu Bakr said that she had come to him while he was among thepeople and said that his aunt Amra sent word to him saying, "Son of mybrother! You have taken a Nabatean for something insignificant whichwas mentioned to me. Do you want to cut off his hand?" He had said,"Yes." She said, ''Amra says to you not to cut off the hand except fora quarter of a dinar and upwards."Abu Bakr added, "So I letthe Nabatean go."Malik said, "The generally agreed on way ofdoing things among us about the confession of slaves is that if aslave confesses something against himself, the hadd and punishment forit is inflicted on his body. His confession is accepted from him andone does not suspect that he would inflict something on himself."Malik said, "As for the one of them who confesses to a matterwhich will incur damages agains this master, his confession is notaccepted against his master."Malik said, "One does not cutoff the hand of a hireling or a man who is with some people to servethem, if he robs them, because his state is not the state of a thief.His state is the state of a treacherous one. The treacherous one doesnot have his hand cut off."Malik said about a person whoborrows something and then denies it, "His hand is not cut off. He islike a man who owes a debt to another man and denies it. He does nothave his hand cut off for what he has denied."Malik said,"The generally agreed-on way of dealing among us, with the thief whois found in a house and has gathered up goods and has not taken themout, is that his hand is not cut off. That is like the man who placeswine before him to drink it and does not do it. The hadd is notimposed on him. That is like a man who sits with a woman and desiresto have haram intercourse with her and does not do it and he does notreach her. There is no hadd against that either."Malik said,"The generally agreed-on way of doing things among us is that there isno cutting off the hand for what is taken by chance, openly and inhaste, whether or not its price reaches that for which the hand is cutoff."