Hadith 27381

Yahya related to me that Malik said, "What is done in ourcommunity in the case of a man who makes his slave-girl a mudabbaraand she gives birth to children after that, and then the slave-girldies before the one who gave her a tadbir is that her children are inher position. The conditions which were confirmed for her areconfirmed for them. The death of their mother does not harm them. Ifthe one who made her mudabbara dies, they are free if their value isless than one third of his total property."Malik said, "Forevery mother by birth as opposed to mother by suckling, her childrenare in her position. If she is free and she gives birth after she isfree, her children are free. If she is a mudabbara or mukataba, orfreed after a number of years in service, or part of her is free orpledged or she is an umm walad, each of her children are in the sameposition as their mother. They are set free when she is set free andthey are slaves when she is a slave."Malik said about themudabbara given a tadbir while she was pregnant, "Her children are inher position. That is also the position of a man who frees his slave-girl while she is pregnant and does not know that she is pregnant."Malik said, "The sunna about such women is that theirchildren follow them and are set free by their being set free."Malik said, "It is the same as if a man had bought a slave-girlwhile she was pregnant. The slave-girl and what is in her womb belongto the one who bought her whether or not the buyer stipulates that."Malik continued, "It is not halal for the seller to make anexception about what is in her womb because that is an uncertaintransaction. It reduces her price and he does not know if that willreach him or not. That is as if one sold the foetus in the womb of themother. That is not halal because it is an uncertain transaction ."Malik said about the mukatab or mudabbar who bought a slave-girl and had intercourse with her and she became pregnant by him andgives birth, "The children of both of them by a slave-girl are in hisposition. They are set free when he is set free and they are slaveswhen he is a slave."Malik said, "When he is set free, theumm walad is part of his property which is surrendered to him when heis set free."