36. Judgements

Yahya related to me from Malik from Hisham ibn Urwa from hisfather from Zaynab bint Abi Salama from Umm Salama, the wife of theProphet, may Allah bless him and grant him peace, that the Messengerof Allah, may Allah bless him and grant him peace, said, "I am but aman to whom you bring your disputes. Perhaps one of you is moreeloquent in his proof than the other, so I give judgement according towhat I have heard from him. Whatever I decide for him which is part ofthe right of his brother, he must not take any of it, for I amgranting him a portion of the Fire." Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat Umar ibn al-Khattab had a dispute brought to him between a muslimand a jew. Umar saw that the right belonged to the jew and decided inhis favour. The jew said to him, "By Allah! You have judgedcorrectly.'' So Umar ibn al-Khattab struck him with a whip and said,"How can you be sure." The jew said to him, "We find that there is nojudge who judges correctly but that there is an angel on his rightside and an angel on his left side who guide him and give him successin the truth as long as he is with the truth. When he leaves thetruth, they rise and leave him." Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnMuhammad ibn Amr ibn Hazm from his father from Abdullah ibn Amr ibnUthman from Abu Amra al-Ansari from Zayd ibn Khalid al-Juhani that theMessenger of Allah, may Allah bless him and grant him peace, said,"Shall I not tell you who is the best of witnesses? The one who bringshis testimony before he is asked for it, or tells his testimony beforehe is asked for it." Malik related to me that Rabia ibn Abi Abd ar-Rahman said, "AnIraqi man came before Umar ibn al-Khattab and said, 'I have come toyou because of a matter which has no beginning and no end.' Umar said,'What is it?' The man said, 'False testimony has appeared in ourland.' Umar said, 'Is that so?' He said, 'Yes.' Umar said, 'By Allah!A man is not detained in Islam without just witnesses.' " Malik related to me that Umar ibn al-Khattab said, "The testimony ofsome one known to bear a grudge or to be unreliable is not accepted." Yahya said from Malik that he heard from Sulayman ibn Yasar andothers that when they were asked whether the testimony of a manflogged for a hadd crime was permitted, they said, "Yes, whenrepentance (tawba) appears from him." Malik related to methat he heard Ibn Shihab being asked about that and he said the likeof what Sulayman ibn Yasar said. Malik said, "That is what isdone in our community. It is by the word of Allah, the Blessed, theExalted, 'And those who accuse women who are muhsan, and then do notbring four witnesses, flog them with eighty lashes, and do not acceptany testimony of theirs ever. They indeed are evil-doers, save thosewho turn in tawba after that and make amends. Allah is Forgiving,Merciful.' " (Sura 24 ayat 4). Yahya said, "Malik said from Jafar ibn Muhammad from his fatherthat the Messenger of Allah, may Allah bless him and grant him peace,pronounced judgement on the basis of an oath with one witness." From Malik from Abu'z-Zinad that Umar ibn Abd al-Aziz wrote toAbd al-Hamid ibn Abd ar-Rahman ibn Zayd ibn al-Khattab who was thegovernor of Kufa, "Pronounce judgement on the basis of an oath withone witness." Malik related to me that he heard that Abu Salama ibn Abd ar-Rahman and Sulayman ibn Yasar were both asked, "Does one pronouncejudgement on the basis of an oath with one witness?" They both said,"Yes." Malik said, "The precedent of the sunna in judging byan oath with one witness is that if the plaintiff takes an oath withhis witness, he is confirmed in his right. If he draws back andrefuses to take an oath, the defendant is made to take an oath. If hetakes an oath, the claim against him is dropped. If he refuses to takean oath, the claim is confirmed against him." Malik said,"This procedure pertains to property cases in particular. It does notoccur in any of the hadd-punishments, nor in marriage, divorce,freeing slaves, theft or slander. If some one says, 'Freeing slavescomes under property,' he has erred. It is not as he said. Had it beenas he said, a slave could take an oath with one witness, if he couldfind one, that his master had freed him. "However, when aslave lays claim to a piece of property, he can take an oath with onewitness and demand his right as the freeman demands his right." Malik said, "The sunna with us is that when a slave bringssomebody who witnesses that he has been set free, his master is madeto take an oath that he has not freed him, and the slave's claim isdropped." Malik said, "The sunna about divorce is also likethat with us. When a woman brings somebody who witnesses that herhusband has divorced her, the husband is made to take an oath that hehas not divorced her. If he takes the oath, the divorce does notproceed . " Malik said, "There is only one sunna of bringinga witness in cases of divorce and freeing a slave. The right to makean oath only belongs to the husband of the woman, and the master ofthe slave. Freeing is a hadd matter, and the testimony of women is notpermitted in it because when a slave is freed, his inviolability isaffirmed and the hadd punishments are applied for and against him. Ifhe commits fornication and he is a muhsan, he is stoned. If he kills aslave, he is killed for it. Inheritance is established for him,between him and whoever inherits from him. If somebody disputes this,arguing that if a man frees his slave and then a man comes to demandfrom the master of the slave payment of a debt, and a man and twowomen testify to his right, that establishes the right against themaster of the slave so that his freeing him is cancelled if he onlyhas the slave as property, inferring by this case that the testimonyof women is permitted in cases of setting free. The case is not as hesuggests (i.e. it is a case of property not freeing). It is like a manwho frees his slave, and then the claimant of a debt comes to themaster and takes an oath with one witness, demanding his right. Bythat, the freeing of the slave would be cancelled. Or else a man comeswho has frequent dealings and transactions with the master of theslave. He claims that he is owed money by the master of the slave.Someone says to the master of the slave, 'Take an oath that you don'towe what he claims'. If he draws back and refuses to take an oath, theone making the claim takes an oath and his right against the master ofthe slave is confirmed. That would cancel the freeing of the slave ifit is confirmed that property is owed by the master." Maliksaid, "It is the same case with a man who marries a slave-girl andthen the master of the slave-girl comes to the man who has married herand claims, 'You and so-and-so have bought my slave-girl from me forsuch an amount of dinars. The husband of the slave-girl denies that.The master of the slave-girl brings a man and two women and theytestify to what he has said. The sale is confirmed and his claim isconsidered true. So the slave-girl is haram for her husband and theyhave to separate, even though the testimony of women is not acceptedin divorce." Malik said, "It is also the same case with a manwho accuses a free man, so the hadd falls on him. A man and two womencome and testify that the one accused is a slave. That would removethe hadd from the accused after it had befallen him, even though thetestimony of women is not accepted in accusations involving haddpunishments." Malik said, "Another similar case in whichjudgement appears to go against the precedent of the sunna is that twowomen testify that a child is born alive and so it is necessary forhim to inherit if a situation arises where he is entitled to inherit,and the child's property goes to those who inherit from him, if hedies, and it is not necessary that the two women witnesses should beaccompanied by a man or an oath even though it may involve vastproperties of gold, silver, live-stock, gardens and slaves and otherproperties. However, had two women testified to one dirham or more orless than that in a property case, their testimony would not affectanything and would not be permitted unless there was a witness or anoath with them." Malik said, "There are people who say thatan oath is not acceptable with only one witness and they argue by theword of Allah the Blessed, the Exalted, and His word is the Truth,'And call in to witness two witnesses, men; or if the two be not men,then one man and two women, such witnesses as you approve of.' (Sura 2ayat 282). Such people argue that if he does not bring one man and twowomen, he has no claim and he is not allowed to take an oath with onewitness." Malik said, "Part of the proof against those whoargue this, is to reply to them, 'Do you think that if a man claimedproperty from a man, the one claimed from would not swear that theclaim was false?' If he swears, the claim against him is dropped. Ifhe refuses to take an oath, the claimant is made to take an oath thathis claim is true, and his right against his companion is established.There is no dispute about this with any of the people nor in anycountry. By what does he take this? In what place in the Book of Allahdoes he find it? So if he confirms this, let him confirm the oath withone witness, even if it is not in the Book of Allah, the Mighty, theMajestic! It is enough that this is the precedent of the sunna.However, man wants to recognise the proper course of action and thelocation of the proof. In this there is a clarification for what isobscure about that, if Allah ta'ala wills." Yahya said that Malik spoke about a man who died and had a debtowing to him and there was one witness, and some people had a debtagainst him and they had only one witness, and his heirs refused totake an oath on their rights with their witness. He said, "Thecreditors take an oath and take their rights. If there is anythingleft over, the heirs do not take any of it. That is because the oathswere offered to them before and they abandoned them, unless they say,'We did not know that our companion had extra,' and it is known thatthey only abandoned the oaths because of that. I think that theyshould take an oath and take what remains after his debt." Yahya said, "Malik said about Jamil ibn Abd ar-Rahman al-Muadhdinthat he was present with Umar ibn Abd al-Aziz when he was judgingbetween people. If a man came to him with a claim against a man, heexamined whether or not there were frequent transactions and dealingsbetween them. If there were, the defendant could make an oath. Ifthere was nothing of that nature he did not accept an oath from him." Malik summed up, "What is done in our community is that ifsome one makes a claim against a man, it is examined. If there arefrequent transactions and dealings between them, the defendant is madeto take an oath. If he takes an oath, the claim against him isdropped. If the defendant refuses to take an oath, and returns theoath to the claimant, the one claiming his right takes an oath andtakes his due." Yahya said, "Malik said from Hisham ibn Urwa that Abdullah ibnaz-Zubayr gave judgment based on the testimony of children concerningthe injuries between them." Malik said, "The generally agreedon way of doing things in our community is that the testimony ofchildren is permitted concerning injuries between them. It is notaccepted about anything else. It is only permitted between them ifthey testify before they leave the scene of the incident and have beendeceived or instructed. If they leave the scene, they have notestimony unless they call just witnesses to witness their testimonybefore they leave." Yahya said, Malik related to us from Hisham ibn Hisham ibn Utbaibn Abi Waqqas from Abdullah ibn Nistas from Jabir ibn Abdullah al-Ansari that the Messenger of Allah, may Allah bless him and grant himpeace, said, 'If someone swears a false oath near this mimbar of mine,he will take his seat in the fire.' " Malik related to me from al-Ala ibn Abd ar-Rahman from Mabad ibnKab as-Salami from his brother Abdullah ibn Kab ibn Malik al-Ansarifrom Abu Umama that the Messenger of Allah, may Allah bless him andgrant him peace, said, "Whoever cuts off the right of a muslim man byhis oath, Allah forbids him the Garden and obliges the Fire for him."They said, "Even if it is something insignificant, Messenger ofAllah?" He said, "Even if it is a tooth-stick, even if it is a tooth-stick," repeating it three times. Yahya said that Malik had said from Da'ud ibn al-Husayn that heheard Abu Ghatafan ibn Tarif al-Muriyi say, "Zayd ibn Thabit al-Ansariand Ibn Muti had a dispute about a house which they shared. They wentto Marwan ibn al-Hakam who was the Amir of Madina. Marwan decided thatZayd ibn Thabit must take an oath on the mimbar. Zayd ibn Thabit said,'I swear to it where I am.' Marwan said, 'No, by Allah! only in theplace of sorting out claims (i.e. the mimbar).' Zayd ibn Thabit beganto take an oath that his right was true, and he refused to take anoath near the mimbar. Marwan ibn al-Hakam began to wonder at that." Malik said, "I do not think that anyone should be made totake an oath near the mimbar for less than a fourth of a dinar, andthat is three dirhams." Yahya said, "Malik related to us from Ibn Shihab from Sa'id ibnal-Musayyab that the Messenger of Allah, may Allah bless him and granthim peace, said, 'The pledge given as security is not forfeited.' " Malik said, "The explanation of that according to what wethink - and Allah knows best - is that a man gives a pledge tosomebody in security for something. The pledge is superior to that forwhich he pawned it. The pledger says to the pawn-broker, 'I will bringyou your due, after such-and-such a time. If not, the pledge is yoursfor what it was pawned for.' " Malik said, "This transactionis not good and it is not halal. This is what was forbidden. If theowner brings what he pledged it for after the period, it is his. Ithink that the time condition is void." Yahya said, "I heard Malik say that if a man pledges his gardenfor a stated period and the fruits of that garden are ready before theend of that period, the fruits are not included in the pledge with thereal estate, unless it is stipulated by the pledger in his pledge.However, if a man receives a slave-girl as a pledge and she ispregnant or she becomes pregnant after his taking her as a pledge, herchild is included with her. "A distinction is made betweenthe fruit and the child of the slave-girl. The Messenger of Allah, mayAllah bless him and grant him peace, said, 'If someone sells a palmwhich has been pollinated, the fruit belongs to the seller unless thebuyer stipulates its inclusion.' The undisputed way of doing things inour community is that if a man sells a slave-girl or an animal with afoetus in its womb, the foetus belongs to the buyer, whether or notthe buyer stipulates it. The palm is not like the animal. Fruit is notlike the foetus in its mother's womb. Part of what clarifies that isalso that it is the usage of people to have a man pawn the fruit ofthe palm apart from the palm. No one pawns the foetus in its mother'swomb whether of slaves or animals." Yahya said that he had heard Malik say, "The undisputed way ofdoing things in our community concerning pledges is that in caseswhere land or a house or an animal are known to have been destroyedwhilst in the possession of the broker of the pledge, and thecircumstances of the loss are known, the loss is against the pledger.There is no deduction made from what is due to the broker at all. Anypledge which perishes in the possession of the broker and thecircumstances of its loss are only known by his word, the loss isagainst the broker and he is liable for its value. He is asked todescribe whatever was destroyed and then he is made to take an oathabout that description and what he loaned on security for it. "Thenpeople of discernment evaluate the description. If the pledge wasworth more than what the broker loaned, the pledger takes the extra.If the assessed value of the pledge is less than what he was loaned,the pledger is made to take an oath as to what the broker loaned andhe does not have to pay the extra which the broker loaned above theassessed value of the pledge. If the pledger refuses to take an oath,he has to give the broker the extra above the assessed value of thepledge. If the broker says that he doesn't know the value of thepledge, the pledger is made to take an oath on the description of thepledge and that is his if he brings a matter which is not disapprovedof." Malik said, "All this applies when the broker takes thepledge and does not put it in the hands of another." Yahya said that he heard Malik speak about two men who had apledge between them. One of them undertook to sell his pledge, and theother one had asked him to wait a year for his due. He said, "If it ispossible to divide the pledge, and the due of the one who asked him towait will not be decreased, half the pledge which is between them issold for him and he is given his due. If it is feared that his rightwill be decreased, all the pledge is sold, and the one who undertookto sell his pledge is given his due from that. If the one who askedhim to wait for his due is pleased in himself, half of the price ispaid to the pledger. If not, the pledgee is made to take an oath thathe only asked him to wait so that he could transfer my pledge to me inits form.' Then he is given his due immediately." Yahya saidthat he heard Malik say about a slave whose master had pledged him andthe slave had property of his own, "The property of the slave is notpart of the pledge unless the broker stipulates that." Yahya said that he heard Malik speak about someone who pledgedgoods as security for a loan, and they perished with the broker. Theone who took out the loan confirmed its specification. They agreed onthe amount of the loan, but challenged each other about the value ofthe pledge, the pledger saying that it had been worth twenty dinars,whilst the broker said that it had been worth only ten, and that theamount loaned on security was twenty dinars. Malik said, "It is saidto the one in whose hand the pledge is, 'describe it.' If he describesit he is made to take an oath on it and then the people of experienceevaluate that description. If the value is more than what was loanedon security for it, it is said to the broker, 'Return the rest of hisdue to the pledger.' If the value is less than what was loaned onsecurity for it, the broker takes the rest of his due from thepledger. If the value is the exact amount of the loan, the pledge iscompensated for by the loan." Yahya said that he heard Maliksay, "What is done in our community about two men who have a disputeabout an amount of money loaned on the security of a pledge - thepledger claiming that he pledged it for ten dinars and the brokerinsisting that he took the pledge as security for twenty dinars, andthe pledge is clearly in the possession of the broker - is that thebroker is made to take an oath when the value of the pledge is fullyknown. If the value of the pledge is exactly what he swore that he hadloaned on security for it, the broker takes the pledge as his right.He is more entitled to take precedence with an oath since he haspossession of the pledge. If the owner of the pledge wants to give himthe amount which he swore that he was owed, he can take the pledgeback. If the pledge is worth less than the twenty dinars he loaned,then it is said to the pledger, 'Either you give him what he has swornto and take your pledge back, or you swear to what you said youpledged it for.' If the pledger takes the oath, then what the brokerhas increased over the value of the pledge will become invalid. If thepledger does not take an oath, he must pay what the broker swore to." Malik said, "If a pledge given on security for a loanperishes, and both parties deny each other's rights, with the brokerwho is owed the loan saying that he gave twenty dinars, and thepledger who owes the loan saying that he was given only ten, and withthe broker who is owed the loan saying the pledge was worth tendinars, and the broker who owes the loan saying it was worth twenty,then the broker who is owed the loan is asked to describe the pledge.If he describes it, he must take an oath on its description. Thenpeople with experience of it evaluate that description. If the valueof the pledge is estimated to be more than what the broker claims itwas, he takes an oath as to what he claimed, and the pledger is givenwhat is over from the value of the pledge. If its value is less thanwhat the broker claims of it, he is made to take an oath as to what heclaims is his. Then he demands settlement according to the actualvalue of the pledge. The one who owes the loan is then made to take anoath on the extra amount which remains owing against him to theclaimant after the price of the pledge is reached. That is because thebroker becomes a claimant against the pledger. If he takes an oath,the rest of what the broker swore to of what he claimed above thevalue of the pledge is invalidated. If he draws back, he is bound topay what remains due to the broker after the value of the pledge." Yahya said that he heard Malik say, "What is done in ourcommunity about a man who rents an animal for a journey to a specifiedplace and then he goes beyond that place and further, is that theowner of the animal has a choice. If he wants to take extra rent forhis animal to cover the distance overstepped, he is given that on topof the first rent and the animal is returned. If the owner of theanimal likes to sell the animal from the place where he over-steps, hehas the price of the animal on top of the rent. If, however, the hirerrented the animal to go and return and then he overstepped when hereached the city to which he rented him, the owner of the animal onlyhas half the first rent. That is because half of the rent is going,and half of it is returning. If he oversteps with the animal, onlyhalf of the first rent is obliged for him. Had the animal died when hereached the city to which it was rented, the hirer would not be liableand the renter would only have half the rent." Malik said,"That is what is done with people who overstep and dispute about whatthey took the animal for." Malik said, "It is also like thatwith some one who takes qirad-money from his companion. The owner ofthe property says to him, 'Do not buy such-and-such animals or such-and-such goods.' He names them and forbids them and disapproves of hismoney being invested in them. The one who takes the money then buyswhat he was forbidden. By that, he intends to be liable for the moneyand take the profit of his companion. When he does that, the owner ofthe money has an option. If he wants to enter with him in the goodsaccording to the original stipulations between them about the profit,he does so. If he likes, he has his capital guaranteed against the onewho took the capital and over stepped the mark." Malik said,"It is also like that with a man with whom another man invests somegoods. The owner of the property orders him to buy certain goods forhim which he names. He differs, and buys with the goods somethingother than what he was ordered to buy. He exceeded his orders. Theowner of the goods has an option. If he wants to take what was boughtwith his property, he takes it. If he wants the partner to be liablefor his capital he has that." Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwangave a judgment that the rapist had to pay the raped woman her bride-price. Yahya said that he heard Malik say, "What is done inour community about the man who rapes a woman, virgin or non-virgin,if she is free, is that he must pay the bride-price of the like ofher. If she is a slave, he must pay what he has diminished of herworth. The hadd-punishment in such cases is applied to the rapist, andthere is no punishment applied to the raped woman. If the rapist is aslave, that is against his master unless he wishes to surrender him." Yahya said that he heard Malik say, "What is done in ourcommunity about someone who consumed an animal without the permissionof its owner, is that he must pay its price on the day he consumed it.He is not obliged to replace it with a similar animal nor does hecompensate the owner with any kind of animal. He must pay its price onthe day it was consumed, and giving the value is more equitable incompensation for animals and goods." Yahya said that he heardMalik say about someone who consumes some food without the permissionof its owner, "He returns to the owner a like weight of the same kindof food. Food is in the position of gold and silver. Gold and silverare returned with gold and silver. The animal is not in the positionof gold in that. What distinguishes between them is the sunna and thebehaviour which is in force. Yahya said that he heard Maliksay, "If a man is entrusted with some wealth and then trades with itfor himself and makes a profit, the profit is his because he isresponsible for the property until he returns it to its owner. " Yahya related to me from Malik from Zayd ibn Aslam that theMessenger of Allah, may Allah bless him and grant him peace, said, "Ifsomeone changes his deen - strike his neck!" The meaning ofthe statement of the Prophet, may Allah bless him and grant him peace,in our opinion and Allah knows best, is that "if someone changes hisdeen, strike his neck!" refers to those who leave Islam for other thanit - like the heretics and their like, about whom it is known. Theyare killed without being called to tawba because their tawba is notrecognised. They were hiding their kufr and publishing their Islam, soI do not think that one calls such people to tawba, and one does notaccept their word. As for the one who goes out of Islam to somethingelse and divulges it, one calls him to tawba. If he does not turn intawba, he is killed. If there are people in that situation, I thinkthat one should call them to Islam and call them to tawba. If theyturn in tawba, that is accepted from them. If they do not turn intawba, they are killed. That does not refer as we see it, and Allahknows best, to those who come out of Judaism to Christianity or fromChristianity to Judaism, nor to someone who changes his deen from thevarious forms of deen except for Islam. Whoever comes out of Islam toother than it and divulges that, that is the one who is referred to,and Allah knows best! Malik related to me from Abd ar-Rahman ibn Muhammad ibn Abdullahibn Abd al-Qari that his father said, "A man came to Umar ibn al-Khattab from Abu Musa al-Ashari. Umar asked after various people, andhe informed him. Then Umar inquired, 'Do you have any recent news?' Hesaid, 'Yes. A man has become a kafir after his Islam.' Umar asked,'What have you done with him?' He said, 'We let him approach andstruck off his head.' Umar said, 'Didn't you imprison him for threedays and feed him a loaf of bread every day and call on him to tawbathat he might turn in tawba and return to the command of Allah?' ThenUmar said, 'O Allah! I was not present and I did not order it and I amnot pleased since it has come to me!' " Yahya related to me from Malik from Suhayl ibn Abi Salih as-Samman from his father from Abu Hurayra that Sad ibn Ubada said to theMessenger of Allah, may Allah bless him and grant him peace, "What doyou think if I find a man with my wife? Shall I grant him a respiteuntil I bring four witnesses?" The Messenger of Allah, may Allah blesshim and grant him peace, replied, "Yes." Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat a Syrian man called Ibn Khaybari found a man with his wife andkilled him, or killed them both. Muawiya ibn Abi Sufyan found itdifficult to make a decision and he wrote to Abu Musa al-Ashari to askAli ibn Abi Talib for him about that. So Abu Musa asked Ali ibn AbiTalib and AIi said to him, "Is this thing in my land? I adjure you,you must tell me." Abu Musa explained to him how Muawiya ibn AbiSufyan had written him to ask Ali about it. Ali said, "I am Abu Hasan.If he does not bring four witnesses, then let him be completely handedover," (to the relatives of the murdered man). Yahya said that Malik related from Ibn Shihab that Sunayn AbiJamila, a man from the Banu Sulaym, found an abandoned child in thetime of Umar ibn al-Khattab. Sunayn took him to Umar ibn al-Khattab.He asked, "What has induced you to take this person?" He answered, "Ifound him lost, so I took him.'' Umar's advisor said to him,' 'Amiral-Muminin! He is a man who does good." Umar inquired of him, "Is itso?" He replied, "Yes." Umar ibn al-Khattab said, "Go, he is free, andyou have his wala' inheritance, and we will provide for him." Yahya said that he heard Malik say, "What is done in our communityabout an abandoned child is that he is free, and his wala' inheritancebelongs to the muslims, and they inherit from him and pay his bloodmoney." Yahya said from Malik from Ibn Shihab from Urwa ibn az-Zubayrthat A'isha, the wife of the Prophet, may Allah bless him and granthim peace, said, ''Utba ibn Abi Waqqas disclosed to his brother, Sadibn Abi Waqqas, that he was the father of the son of the slave-girl ofZama, and made him promise to look after him (after his death). In theyear of the conquest, Sad took him and said, 'He is the son of mybrother. He covenanted with me about him.' Abd ibn Zama stood up andsaid, 'He is my brother and the son of my father's slave-girl. He wasborn on his bed.' They went to the Messenger of Allah, may Allah blesshim and grant him peace. Sad said, 'Messenger of Allah! He is the sonof my brother, he made a covenant with me about him.' Abd ibn Zamasaid, 'He is my brother and the son of my father's slave-girl and wasborn on my father's bed.' The Messenger of Allah, may Allah bless himand grant him peace, said, 'He is yours, Abd ibn Zama.' Then theMessenger of Allah, may Allah bless him and grant him peace, said, 'Achild belongs to the household (where he was born) and the adultereris stoned.' Then he told Sawda bint Zama, 'Veil yourself from him,'since he saw in him a resemblance to Utba ibn Abi Waqqas." A'ishaadded, "He did not see her until he met Allah, the Mighty, theMajestic!" Malik related to me from Yazid ibn Abdullah ibn al-Hadi fromMuhammad ibn Ibrahim ibn al-Harith at-Taymi from Sulayman ibn Yasarfrom Abdullah ibn Abi Umayya that a woman's husband died, and she didthe idda of four months and ten days. Then she married when she wasfree to marry. She stayed with her husband for four and a half months,then gave birth to a fully developed child. Her husband went to Umaribn al-Khattab and mentioned that to him, so Umar called some of theold women of the Jahiliyya and asked them about that. One of the womensaid, "I will tell you what happened with this woman. When her husbanddied, she was pregnant by him, but then the blood flowed from herbecause of his death and the child became dry in her womb. When hernew husband had intercourse with her and the water reached the child,the child moved in the womb and grew." Umar ibn al-Khattab believedher and separated them (until she had completed her idda). Umar said,"Only good has reached me about you two," and he connected the childto the first husband. Malik related to me from Yahya ibn Said from Sulayman ibn Yasarthat Umar ibn al-Khattab used to attach the children of the Jahiliyyato whoever claimed them in Islam. Two men came and each of themclaimed a woman's child. Umar ibn al-Khattab summoned a person whoscrutinized features and he looked at them. The scrutinizer said,"They both share in him." Umar ibn al-Khattab hit him with a whip.Then he summoned the woman, and said, "Tell me your tale." She said,"It was this one (indicating one of the two men) who used to come tome while I was with my people's camels. He did not leave me until hethought and I thought that I was pregnant. Then he left me, and bloodflowed from me, and this other one took his place. I do not know fromwhich of them the child is." The scrutinizer said, "Allah is greater."Umar said to the child, "Go to whichever of them you wish." Malik related to me that he had heard that Umar ibn al-Khattab orUthman ibn Affan gave a judgement about a slave woman who misled a manabout herself and said that she was free. He married her and she borechildren. It was decided that he should ransom his children with theirlike of slaves. Yahya said that he heard Malik say, "Toransom them with their price is more equitable in this case, Allahwilling." Yahya said that he heard Malik say, "The way of doing thingsgenerally agreed upon in our community in the case of a man who diesand has sons and one of them claims, 'My father confirmed that so-and-so was his son,' is that the relationship is not established by thetestimony of one man, and the confirmation of the one who confirmed itis only permitted as regards his own share in the division of hisfather's property. The one testified for is only given his due fromthe share of the testifier." Malik said, "An example of thisis that a man dies leaving two sons, and 600 dinars. Each of themtakes 300 dinars. Then one of them testifies that his deceased fatherconfirmed that so-and-so was his son. The one who testifies is obligedto give 100 dinars to the one thus connected. This is half of theinheritance of the one thought to be related, had he been related. Ifthe other confirms him, he takes the other 100 and so he completes hisright and his relationship is established. His position is similar tothat of a woman who confirms a debt against her father or her husbandand the other heirs deny it. She must pay to the person whose debt sheconfirms, the amount according to her share of the full debt, had itbeen confirmed against all the heirs. If the woman inherits an eighth,she pays the creditor an eighth of his debt. If a daughter inherits ahalf, she pays the creditor half of his debt. Whichever women confirmhim, pay him according to this. Malik said, "If a man'stestimony is in agreement with what the woman testified to, that so-and-so had a debt against his father, the creditor is made to take anoath with one witness and he is given all his due. This is not theposition with women because a man's testimony is allowed and thecreditor must take an oath with the testimony of his witness, and takeall his due. If he does not take an oath, he only takes from theinheritance of the one who confirmed him according to his share of thedebt, because he confirmed his right and the other heirs denied it. Itis permitted for him to confirm it." Yahya said that Malik related from Ibn Shihab from Salim ibnAbdullah ibn Umar from his father that Umar ibn al-Khattab said,"What's the matter with men who have intercourse with their slave-girls and then dismiss them? No slave-girl comes to me whose masterconfesses that he has had intercourse with her but that I connect herchild to him, whether or not he has practised coitus interruptus orstopped having intercourse with her." Malik related to me from Nafi that Safiyya bint Abi Ubaydinformed him that Umar ibn al-Khattab said, "What is the matter withmen who have intercourse with their slave-girls and then leave them togo? No slave-girl comes to me whose master confesses that he has hadintercourse with her but that I connect her child to him, whether ornot he has practised coitus interruptus or left off from intercoursewith her." Yahya said that he heard Malik say, "What is donein our community about an umm walad who commits a crime is that hermaster is liable for what she has done up to her value. He does nothave to surrender her, and he cannot be made to bear more than hervalue for her crime." Yahya related from Malik from Hisham ibn Urwa from his fatherthat the Messenger of Allah, may Allah bless him and grant him peace,said, "If anyone revives dead land, it belongs to him, and the unjustroot has no right." Malik explained, "The unjust root iswhatever is taken, or planted without right." Malik related to me from Ibn Shihab from Salim ibn Abdullah fromhis father that Umar ibn al-Khattab said, "Whoever revives dead land,it belongs to him." Malik said, "That is what is done in ourcommunity." Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnMuhammad ibn Amr ibn Hazm that he heard that the Messenger of Allah,may Allah bless him and grant him peace, said about the flood-channelsof Mahzur and Mudhaynib (in Madina), "Dam them systematically, so thatthe water is diverted into each property in turn up to ankle level,starting upstream." Malik related to me from Abu'z-Zinad from al-Araj from AbuHurayra that the Messenger of Allah, may Allah bless him and grant himpeace, said, "Excess water is not withheld in order to prevent herbagefrom growing." Malik related to me from Abu'r-Rijal Muhammad ibn Abd ar-Rahmanfrom his mother Amra bint Abd ar-Rahman that she informed him that theMessenger of Allah, may Allah bless him and grant him peace, said, "Donot withhold the surplus water of a well from people." Yahya related to me from Malik from Amr ibn Yahya al-Mazini fromhis father that the Messenger of Allah, may Allah bless him and granthim peace, said, "There is no injury nor return of injury." Malik related to me from Ibn Shihab from al-Araj from Abu Hurayrathat the Messenger of Allah, may Allah bless him and grant him peace,said, "No one should prevent his neighbour from fixing a wooden peg inhis wall." Then Abu Hurayra said, "Why do I see you turning away fromit? By Allah! I shall keep on at you about it." Malik related to me from Amr ibn Yahya al-Mazini from his fatherthat ad-Dahhak ibn Khalifa watered his irrigation ditch from a largesource of water. He wanted to have it pass through the land ofMuhammad ibn Maslama, and Muhammad refused. Ad-Dahhak said to him,"Why do you prevent me? It will benefit you. You can drink from itfirst and last and it will not harm you." Muhammed refused so ad-Dahhak spoke about it to Umar ibn al-Khattab, and Umar ibn al-Khattabsummoned Muhammad ibn Maslama and ordered him to clear the way.Muhammad said, "No." Umar said, "Why do you prevent your brother fromwhat will benefit him and is also useful for you? You will take waterfrom it first and last and it will not harm you." Muhammadsaid, "No, by Allah!" Umar said, "By Allah, he will pass it through,even if it is over your belly!" Umar ordered him to allow its passageand ad-Dahhak did so. Malik related to me from Amr ibn Yahya al-Mazini that his fathersaid, "There was a stream in my grand-father's garden belonging to Abdar-Rahman ibn Awf Abd ar-Rahman ibn Awf wanted to transfer it to acorner of the garden nearer to his land, and the owner of the gardenprevented him. Abd ar-Rahman ibn Awf spoke to Umar ibn al-Khattababout it, and he gave a judgement to Abd ar-Rahman ibn Awf that heshould transfer it." Yahya related to me from Malik that Thawr ibn Zayd ad-Dili said,"I heard that the Messenger of Allah, may Allah bless him and granthim peace, said, 'A house or land that has been divided in theJahiliyya, it is according to the division of the Jahiliyya. A houseor land which has not been divided before the coming of Islam isdivided according to Islam.' " Yahya said that he heard Malik speak about a man who died andleft properties in Aliya and Safila (outlying districts of Madina). Hesaid, "Unirrigated naturally watered land is not in the same categoryas irrigated land unless the family are satisfied with that.Unirrigated land is only in the same category as land with a springwhen it resembles it. When the properties are in one land, and areclose together, each individual property is evaluated and then dividedbetween the heirs. Dwellings and houses are in the same position." Yahya related to me from Malik from Ibn Shihab from Haram ibn Sadibn Muhayyisa that a female camel of al-Bara ibn Azib entered thegarden of a man and it did some damage to it. The Messenger of Allah,may Allah bless him and grant him peace, gave a judgement that thepeople of the garden were responsible for guarding it in the day, andthe owner of the animals was liable for what the animals destroyed atnight. Malik related to me from Hisham ibn Urwa from his father fromYahya ibn Abd ar-Rahman ibn Hatib that some slaves of Hatib stole ashe-camel belonging to a man from the Muzayna tribe and theyslaughtered it. The case was brought before Umar ibn al-Khattab, andUmar ordered Kathir ibn as-Salt to cut off their hands. Then Umar saidto Habib, "I think you must be starving them," and he added, "ByAllah! I will make you pay such a fine that it will be heavy for you."He enquired of the man from the Muzayna tribe, "What was the price ofyour camel?" The Muzayni said, "By Allah, I refused to sell her for400 dirhams.'' Umar said, ''Give him 800 dirhams." Yahya saidthat he heard Malik say, "Doubling the price is not the behaviour ofour community. What people have settled on among us is that the man isobliged to pay the value of the camel or animal on the day he tookit." Yahya said that he heard Malik say, "What is done in ourcommunity about injury to a domestic animal, is that the one whoinjures it must pay the amount by which he has diminished the animal'sprice." Yahya said that he heard Malik speak about a camelwho attacked a man and he feared for himself and killed it orhamstrung it. He said, "If he has a clear proof that it was headingfor him and had attacked him, there are no damages against him. Ifthere is no clear proof except his word, he is responsible for thecamel." Yahya related that he heard Malik say that if a man gave a washera garment to dye and he dyed it, and then the owner of the garmentsaid, "I did not order you to use this dye," and the washer protestedthat he had done so, then the washer was to be believed. It was thesame with the tailor and the gold-smith. They took an oath about itunless they produced something they would not normally have beenemployed to do. In that situation their statement was not allowed andthe owner of the garment had to take an oath . If he rejected it andrefused to swear, then the dyer was made to take an oath. Yahya said, "I heard Malik speak about a dyer who was given a garmentand he made a mistake and gave it to another man and the one to whomhe gave it wore it. He said, 'The one who wore it has no damagesagainst him, and the washer pays damages to the owner of the garment.That is when the man wears the garment which was given him withoutrecognizing that it is not his. If he wears it knowing that it is nothis garment, he is responsible for it.' " Yahya said that he heard Malik say, "What is done in ourcommunity about a man who refers a creditor to another man for thedebt he owes him is that if the one referred to goes bankrupt or dies,and does not leave enough to pay the debt, then the creditor hasnothing against the one who referred him and the debt does not returnto the first party." Malik said, "This is the way of doingthings about which there is no dispute in our community." Malik said, "If a man has his debt to somebody taken on for him byanother man and then the man who took it on dies or goes bankrupt,then whatever was taken on by him returns to the first debtor." Yahya said that he heard Malik say, "If a man buys a garmentwhich has a defect, a burn or something else, which the seller knowsabout and that is testified against him or he confirms it, and the manwho has bought it causes a new tear which decreases the price of thegarment, and then he learns about the original defect, he can returnit to the seller and he is not liable for his tearing it. "Ifa man buys a garment which has a defect of a burn or flaw, and the onewho sold it to him claims that he did not know about it, and the buyerhas cut the garment or dyed it, then the buyer has an option . If hewishes, he can have a reduction according to what the burn or flawdetracts from the price of the garment and he can keep the garment, orif he wishes to pay damages for what the cutting or dyeing hasdecreased of the price of the garment and return it, he can do so. "If the buyer has dyed the garment with a dye which increasesthe value, the buyer has an option. If he wishes, he has a reductionfrom the price of the garment according to what the defect diminishesor if he wishes to become a partner with the one who sold the garmenthe does so. The price of the garment with a burn or flaw is looked at.If the price is ten dirhams, and the amount by which the dyeingincreased the value is five dirhams, then they are partners in thegarment, each according to his share. In this reckoning is the amountby which the dyeing increases the price of the garment." Yahya related to us from Malik from Ibn Shihab from Humayd ibnAbd ar-Rah man ibn Awf and from Muhammad ibn an-Numan ibn Bashir thatthey related to him that an-Numan ibn Bashir said that his fatherBashir brought him to the Messenger of Allah, may Allah bless him andgrant him peace, and said, "I have given this son of mine one of myslaves." The Messenger of Allah, may Allah bless him and grant himpeace, said, "Have you given each of your children the same as this?"He said, "No." The Messenger of Allah, may Allah bless him and granthim peace, said, "Then take the slave back." Malik related to me from Ibn Shihab from Urwa ibn az-Zubayr thatA'isha, the wife of the Prophet, may Allah bless him and grant himpeace, said, "Abu Bakr as-Siddiq gave me palm trees whose produce wastwenty awsuq from his property at al-Ghaba. When he was dying, hesaid, 'By Allah, little daughter, there is no one I would prefer to bewealthy after I die than you. There is no one it is more difficult forme to see poor after I die than you. I gave you palm-trees whoseproduce is twenty awsuq. Had you cut them and taken possession ofthem, they would have been yours, but today they are the property ofthe heirs, and they are your two brothers and your two sisters, sodivide it according to the Book of Allah.' A'isha continued, "I said,'My father! By Allah, even if it had been more, I would have left it.There is only Asma. Who is my other sister?" Abu Bakr replied, 'Whatis in the womb of Kharija? (Kharija was the wife of Abu Bakr's'brother' from the Ansar.) I think that it is going to be a girl.' " Malik related to me from Ibn Shihab from Urwa ibn az-Zubayr fromAbd ar-Rahman ibn Abd al-Qari that Umar ibn al-Khattab said, "What iswrong with men who give their sons gifts and then keep them and if theson dies, they say, 'My property is in my possession and I did notgive it to anyone.' But if they themselves are dying, they say, 'Itbelongs to my son, I gave it to him.' Whoever gives a gift, and doesnot hand it over to the one to whom it was given, the gift is invalid,and if he dies it belongs to the heirs in general." Yahya said that he heard Malik say, "What is done in ourcommunity about some one who gives a gift not intending a reward isthat he calls witnesses to it. It is affirmed for the one to whom ithas been given unless the giver dies before the one to whom it wasgiven receives the gift." He said, "If the giver wants tokeep the gift after he has had it witnessed, he cannot. If therecipient claims it from him, he takes it." Malik said, "Ifsome one gives a gift and then withdraws it and the recipient brings awitness to testify for him that he was given the gift, be it goods,gold, silver or animals, the recipient is made to take an oath. If herefuses, the giver is made to take an oath. If he also refuses to takean oath, he gives to the recipient what he claims from him if he hasat least one witness. If he does not have a witness, he has nothing ." Malik said, "If someone gives a gift not expecting anythingin return and then the recipient dies, the heirs are in his place. Ifthe giver dies before the recipient has received his gift, therecipient has nothing. That is because he was given a gift which hedid not take possession of. If the giver wants to keep it, and he hascalled witnesses to the gift, he cannot do that. If the recipientclaims his right he takes it." Malik related to me from Da'ud ibn al-Husayn from Abu Ghatafanibn Tarif al-Muriyi that Umar ibn al-Khattab said, "If someone gives agift to strengthen ties with a relative or as sadaqa, he cannot haveit returned. If some one, however, gives a gift seeking by it favouror reward, he has his gift and can reclaim it if he does not havesatisfaction from it." Yahya said that he heard Malik say,"The generally agreed-on way of doing things in our community is thatif the gift is returned to the one who gave it for recompense, and itsvalue has been either increased or decreased, the one to whom it hasbeen given gives the owner its value on the day he received it." Yahya said that he heard Malik say, "The way of doing things inour community about which there is no dispute, is that if a man givessadaqa to his son - sadaqa which the son takes possession of or whichis in the father's keeping and the father has had his sadaqawitnessed, he cannot take back any of it because he cannot reclaim anysadaqa." Yahya said that he heard Malik say, "The generallyagreed-on way of doing things in our community in the case of someonewho gives his son a gift or grants him a gift which is not sadaqa isthat he can take it back as long as the child does not start a debt,which people claim from him, and which they trust him for on thestrength of the gift his father has given him. The father cannot takeback anything from the gift after debts are started against it. "If a man gives his son or daughter something and a woman marriesthe man, and she only marries him for the wealth and the propertywhich his father has given him and so the father wants to take thatback, or, if a man marries a woman whose father has given her a giftand he marries her with an increased bride-price because of the wealthand property that her father has given, then the father says, 'I willtake that back,' then the father cannot take back any of that from theson or daughter if it is as I have described to you." Malik related to me from Ibn Shihab from Abu Salama ibn Abd ar-Rahman ibn Awf from Jabir ibn Abdullah al-Ansari that the Messenger ofAllah, may Allah bless him and grant him peace, said, "If someone isgiven a life pension, for him and his posterity, it belongs to theperson to whom it has been given. It never reverts to the one who gaveit because he gave a gift and the rules of inheritance apply to it." Malik related to me from Yahya ibn Said that Abd ar-Rahman ibnal-Qasim ibn Muhammad heard Makhul ad-Dimashqi ask al-Qasim ibnMuhammad about the life pension and what people said about it. Al-Qasim ibn Muhammad said, "I have only come upon people who keep to theconditions they make about their property and what they are given." Yahya said that he heard Malik say, "What is done in ourcommunity is that the life pension reverts to the one who makes it alife pension unless he says, 'It belongs to you and your posterity.' " Malik related to me from Nafi that Abdullah ibn Umar inheritedthe house of Hafsa bint Umar. He said, "Hafsa gave lodging to thedaughter of Zayd ibn al-Khattab for as long as she lived. When thedaughter of Zayd died, Abdullah ibn Umar took possession of thedwelling and considered that it was his." Malik related to me from Rabia ibn Abi Abd ar-Rahman from Yazid,the mawla of al-Munbaith that Zayd ibn Khalid al-Juhani said, "A mancame to the Messenger of Allah, may Allah bless him and grant himpeace, and asked him about finds. He said, 'Memorize thecharacteristics of the object found, then publicise it for a year. Ifthe owner comes, give it to him. If not, then it is your business.' Hesaid, 'What about lost sheep, Messenger of Allah?' He said, 'They areyours, your brother's or the wolf's.' He said, 'And the lost camel?'He said, 'It's none of your concern. It has its water and its feet. Itwill reach water and eat trees until its owner finds it.' " Malik related to me from Ayyub ibn Musa from Muawiya ibn Abdullahibn Badr al-Juhani that his father informed him that he stopped with apeople on the way to Syria and he found a purse which had eightydinars in it. He mentioned that to Umar ibn al-Khattab. Umar said tohim, "Announce it at the doors of the mosques and mention it toeveryone who comes from Syria for a year. When a year passes, it isyour business." Malik related to me from Nafi that a man found something and wentto Abdullah ibn Umar and said to him, "I have found something. What doyou think I should do about it?" Abdullah ibn Umar said to him,"Publicise it!" He said, "I have done so." He said, "Do it again." Hesaid, "I have done so." Abdullah said, "I do not order you to use it.If you wished, you could have left it." Yahya said that he heard Malik say, "What is done in ourcommunity about a slave who finds something and uses it before theterm which is set for finds has been reached, and that is a year, isthat it is against his person. Either his master gives the price ofwhat his slave has used, or he surrenders his slave to them ascompensation. If he withheld it until the term was reached which isset for finds and he used it, it is a debt against him which followshim and it is not against his person and there is nothing against hismaster in it." Malik related to me from Yahya ibn Said from Sulayman ibn Yasarthat Thabit ibn ad-Dahhak al-Ansari told him that he had found a camelat Harra, so he hobbled it and mentioned it to Umar ibn al-Khattab andUmar ordered him to make it known three times. Thabit said to him,"That would distract me from the running of my estate." Umar said tohim, "Then let it go where you found it." Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat Umar ibn al-Khattab said while he was leaning his back againstthe Kaba, "Whoever takes a stray is astray." Malik related to me that he heard Ibn Shihab say, "The straycamels in the time of Umar ibn al-Khattab were numerous and leftalone. No one touched them until the time of Uthman ibn Affan. Heordered that they be publicised and then sold, and if the owner cameafterwards, he was given their price." Malik related to me from Said ibn Amr Shurahbil ibn Said ibn Sadibn Ubada from his father that his father said, ''Sad ibn Ubada wentout with the Messenger of Allah, may Allah bless him and grant himpeace, in one of his raids and his mother was dying in Madina. Someonesaid to her, 'Leave a testament.' She said, 'In what shall I leave atestament? The property is Sad's property.' Then she died before Sadreturned. When Sad ibn Ubada returned, that was mentioned to him. Sadsaid, 'Messenger of Allah! Will it help her if I give sadaqafor her?' The Messenger of Allah, may Allah bless him and grant himpeace, said, 'Yes' Sad said, 'Such-and-such a garden is sadaqa forher,' naming the garden." Malik related to me from Hisham ibn Urwa from his father fromA'isha, the wife of the Prophet, may Allah bless him and grant himpeace, that a man said to the Messenger of Allah, may Allah bless himand grant him peace, "My mother died suddenly, and I think that hadshe spoken, she would have given sadaqa. Shall I give sadaqa for her?"The Messenger of Allah, may Allah bless him and grant him peace, said,"Yes." Malik related to me that he heard that a man of the Ansar fromthe tribe of Banu al-Harith ibn al-Khazraj, gave sadaqa to his parentsand then they died. Their son inherited the property he had given themand it was palm-trees. He asked the Messenger of Allah, may Allahbless him and grant him peace, about it and he said, "You are rewardedfor your sadaqa, and take it as your inheritance."