38. Setting Free and Wala'

Malik related to me from Nafi from Abdullah ibn Umar that the Messenger of Allah, may Allah bless him and grant him peace,said, "If a man frees his share of a slave and has enough money to cover the full price of the slave justly evaluated for him, he must buy out his partners so that the slave is completely freed. If he doesn't have the money, he partially frees him. Malik said, "The generally agreed-on way of doing things among us in the case of slave whose master makes a bequest to free part of him - a third, a fourth, a half, or any share after his death, is that only the portion of him is freed that his master has named. This is because the freeing of that portion is only obliged to take place after the death of the master because the master has the option to withdraw the bequest as long as he lives. When the slave is freed from his master, the master is a testator and the testator only has access to free what he can take from his property, being the third of the property he is allowed to bequeath, and the rest of the slave is not free because the man's property has gone out of his hands. How can the rest of the slave which belongs to other people be free when they did not initiate the setting free and did not confirm it and they do not have the wala' established for them? Only the deceased could do that. He was the one who freed him and the one for whom the wala' was confirmed. That is not to be borne by another's property unless he bequeaths within the third of his property what remains of a lave to be freed. That is a request against his partners and inheritors and the partners must not refuse the slave that when it is within the third of the dead man's property because there is no harm in that to the inheritors." Malik said, "If a man frees a third of his slave while he is critically ill, he must complete the emancipation so all of him is free from him, if it is within the third of his property that he has access to, because he is not treated in the same way as a man who frees a third of a slave after his death, because had the one who freed a third of his slave after his death lived, he could have cancelled it and the slave's being set free would be of no effect. The master who made the freeing of the third of the slave irrevocable in his illness, would still have to free all of him if he lived. If he died, the slave would be set free within the third of the bequest. That is because the command of the deceased is permissible in his third as the command of the healthy is permissible in all his property." Malik said, "A master who frees a slave of his and settles hisemancipation so that his testimony is permitted, his inviolabilitycomplete, and his right to inherit confirmed, cannot imposestipulations on him like what he imposes on a slave about property orservice, nor get him to do anything of slavery, because the Messengerof Allah, may Allah bless him and grant him peace, said, "If a manfrees his share of a slave and has enough money to cover the fullprice of the slave justly evaluated for him, he must give his partnerstheir shares so the slave is completely free." Malikcommented, "If he owns the slave completely, it is more proper to freehim completely and not mingle any slavery with it." Malik related to me from Yahya ibn Said and somebody else fromal-Hasan ibn Abi al-Hasan al-Basri and from Muhammad ibn Sirin that aman in the time of the Messenger of Allah, may Allah bless him andgrant him peace, freed six of his slaves while he was dying. TheMessenger of Allah, may Allah bless him and grant him peace, drew lotsbetween them and freed a third of those slaves. Malik addedthat he had heard that the man did not have any property other thanthem. Malik related to me from Rabia ibn Abi Abd ar-Rahman that a manin the time of Aban ibn Uthman's amirate freed all of his slaves anddid not have other property than them. Aban ibn Uthman took charge ofthe slaves and they were divided into three groups. Then he drew lotson the basis that which ever group drew the dead man's arrow would befree. The arrow fell to one of the thirds, and that third was freed. Malik related to me that he heard Ibn Shihab say, "The precedentof the sunna is that when a slave is freed, his property follows him." Malik said, "One thing which makes clear that the property ofa slave follows him when he is freed is that when the contract(mukatab) is written for his freedom, his property follows him even ifhe did not stipulate it. That is because the bond of kitaba is thebond of wala' when it is complete. The property of a slave and amukatab is not treated in the same way as any children they may have.Their children are only treated in the same way as their own slaves,not in the same way as their property. This is because the sunna, inwhich there is no dispute, is that when a slave is freed, his propertyfollows him and his children do not follow him, and when a mukatabwrites the contract for his freedom, his property follows him and hischildren do not follow him." Malik said, "One thing whichmakes that clear is that when a slave or a mukatab are bankrupt, theirproperty is taken but the mothers of their children and their childrenare not taken because they are not their property." Maliksaid, "Another thing which makes it clear is that when a slave is soldand the person who buys him stipulates the inclusions of his property,his children are not included in his property." Malik said,"Another thing which makes it clear is that when a slave does injuresome one, he and his property are taken, and his children are nottaken." Malik related to me from Nafi from Abdullah ibn Umar that Umaribn al-Khattab said, "If a slave-girl gives birth to a child by hermaster, he must not sell her, give her away, or bequeath her. Heenjoys her and when he dies she is free ." Malik related to me that he had heard that a slave-girl came toUmar ibn al-Khattab (who had been beaten by her master with a red hotiron) and he set her free. Malik said, "The generally agreed-on way of doing things among us is that a man is not permitted to befreed while he has a debt against him which exceeds his property. Aboy is not allowed to be set free until he has reached puberty. Theyoung person whose affairs are managed cannot set free in hisproperty, even when he reaches puberty, until he manages hisproperty." Malik related to me from Hilal ibn Usama from Ata ibn Yasar thatUmar ibn al-Hakam said, "I went to the Messenger of Allah, may Allahbless him and grant him peace, and said, 'Messenger of Allah, a slavegirl of mine was tending my sheep. I came to her and one of the sheepwas lost. I asked her about it and she said that a wolf had eaten it,so I became angry and I am one of the children of Adam, so I struckher on the face. As it happens, I have to set a slave free, shall Ifree her?' The Messenger of Allah, may Allah bless him and grant himpeace, questioned her, 'Where is Allah?' She said, 'In heaven.' Hesaid, 'Who am I?' She said, 'You are the Messenger of Allah.' TheMessenger of Allah, may Allah bless him and grant him peace, said,'Free her.' " Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn Utba ibn Masud that one of the Ansar came to the Messenger ofAllah, may Allah bless him and grant him peace, with a black slave-girl of his. He said, "Messenger of Allah, I must set a slave free whois a mumina. If you think that she is mumina, I will free her." TheMessenger of Allah, may Allah bless him and grant him peace,questioned her, "Do you testify that there is no god but Allah?" Shesaid, "Yes." "Do you testify that Muhammad is the Messenger of Allah?"She said, "Yes." "Are you certain about the rising after death?" Shesaid, "Yes." The Messenger of Allah, may Allah bless him and grant himpeace, said, "Free her." Malik related to me that he had heard that al-Maqburi said thatAbu Hurayra was asked whether a man who had to free a slave, couldfree an illegitimate child to fulfil that obligation. Abu Hurayrasaid, "Yes. That will give satisfaction for him." Malik related to me that he had heard that Fadala ibn Ubayd al-Ansari who was one of the companions of the Messenger of Allah, mayAllah bless him and grant him peace, was asked whether it waspermissible for a man who had to free a slave to free an illegitimatechild. He said, "Yes, That will give satisfaction for him." Malik related to me that he had heard that Abdullah ibn Umar wasasked whether a slave could be bought on the specific condition thatit was to be used to fulfil the obligation of freeing a slave, and hesaid, "No." Malik said, "That is the best of what I haveheard on the obligation of freeing slaves. Someone who has to set aslave free because of an obligation on him, may not buy one on thecondition that he sets it free because if he does that, whatever hebuys is not completely a slave because he has reduced its price by thecondition he has made of setting it free." Malik added,"There is no harm, however, in someone buying a person expressly toset him free." Malik said, "The best of what I have heard onthe obligation of freeing slaves is that it is not permitted to free achristian or a jew to fulfil it, and one does not free a mukatab or amudabbar or an umm walad or a slave to be freed after a certain numberof years, or a blind person. There is no harm in freeing a christian,jew, or magian voluntarily, because Allah, the Blessed, the Exalted,said in His Book, 'either as a favour then or by ransom,' (Sura 47ayat 4) The favour is setting free." Malik said, "As forobligations of freeing slaves which Allah has mentioned in the Book,one only frees a mumin slave for them." Malik said, "It islike that in feeding poor people for kaffara. One must only feedmuslims and one does not feed anyone outside of the deen of Islam." Malik related to me from Abd ar-Rahman ibn Abi Amra al-Ansarithat his mother had wanted to make a bequest, but she delayed untilmorning and died. She had intended to set someone free, so Abd ar-Rahman said, 'I said to al-Qasim ibn Muhammad, 'Will it help her if Ifree a slave for her?' Al-Qasim replied, 'Sad ibn Ubada said to theMessenger of Allah, may Allah bless him and grant him peace, 'Mymother died, will it help her if I set a slave free for her?' TheMessenger of Allah, may Allah bless him and grant him peace, said"Yes." "' Malik related to me that Yahya ibn Said said, ''Abd ar-Rahman ibnAbi Bakr died in his sleep, and A'isha, the wife of the Prophet, mayAllah bless him and grant him peace, set free many slaves for him."Malik said, "This is what I like best of what I have heard on thesubject." 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 the Messenger of Allah, may Allah bless him and grant himpeace, was asked what was the most excellent kind of slave to free.The Messenger of Allah, May Allah bless him and grant him peace,answered, "The most expensive and the most valuable to his master." Malik related to me from Nafi that Abdullah ibn Umar freed anillegitimate child and its mother. Malik related to me from Hisham ibn Urwa from his father thatA'isha, the wife of the Prophet, may Allah bless him and grant himpeace, said, "Barira came to me and said, 'I have written myself asmukatab for my people for nine uqiyas, one uqiya per year, so helpme.' A'isha said, 'If your people agree that I pay it all to them foryou, and that if I pay it, your wala' is mine, then I will do it.'Barira went to her masters and told them that and they didn't agree.She came back from her masters while the Messenger of Allah, may Allahbless him and grant him peace, was sitting. She said to A'isha, 'Ioffered that to them and they refused me unless they had the wala'.'The Messenger of Allah, may Allah bless him and grant him peace, heardthat and asked her about it A'isha told him and the Messenger ofAllah, may Allah bless him and grant him peace, said, 'Take her andstipulate that the wala' is yours, for the wala' is for the one whosets free.' So A'isha did that and then the Messenger of Allah, mayAllah bless him and grant him peace, stood up in front of the people,and praised Allah and gave thanks to Him. Then he said, 'What is wrongwith the people who make conditions which are not in the Book ofAllah? Any condition which is not in the Book of Allah is invalid evenif it is a hundred conditions. The decree of Allah is truer and theconditions of Allah are firmer, and the wala' only belongs to the onewho sets free.' " Malik related to me from Nafi from Abdullah ibn Umar that A'ishaumm al-muminin wanted to buy a slave-girl and set her free. Her peoplesaid, "We will sell her to you provided that her wala' is ours." Shementioned that to the Messenger of Allah, may Allah bless him andgrant him peace, and he said, "Don't let that hinder you, for thewala' only belongs to the one who sets free." Malik related to me from Yahya ibn Said from Amra bint Abd ar-Rahman that Barira came asking the help of A'isha, umm al-muminin.A'isha said, "If your masters agree that I pay them your price in onelump sum and set you free I will do it." Barira mentioned that to hermasters and they said, "No, not unless your wala' is ours." Yahya ibnSaid added that Amra bint Abd ar-Rahman claimed that A'isha mentionedthat to the Messenger of Allah, may Allah bless him and grant himpeace, and the Messenger of Allah, may Allah bless him and grant himpeace said, "Buy her and set her free. The wala' only belongs to theone who sets free." Malik related to me from Abdullah ibn Dinar from Abdullah ibn Umar that the Messenger of Allah, may Allah bless him and grant him peace, forbade selling or giving away the wala'. Malik said that it was not permissible for a slave to buy himself from his master on the provision that he could give the wala' to whomever he wished as the wala' was for the one who set him free, and that had a man given permission to his mawla to give the wala' to whomever he wished, that would not have been permitted, because the Messenger of Allah, may Allah bless him and grant him peace, had said, "The wala' is for the one who sets free. " The Messenger of Allah, may Allah bless him and grant him peace, forbade selling or giving away the wala'. For if it was permitted to the master to stipulate that for him and to give him permission to give the wala' to whomever he liked, that would be a gift. Malik related to me from Rabia ibn Abd ar-Rahman that az-Zubayr ibn al-Awwam bought a slave and set him free. The slave had children by a free woman. When az-Zubayr freed him, he said, "They are my mawali." The man argued, "They are the mawali of their mother. Rather, they are our mawali." They took the dispute to Uthman ibn Affan, and Uthman gave a judgement that az-Zubayr had their wala'. Malik related to me that he had heard that Said ibn al-Musayyab was asked who had the wala' of the children whom a slave had by a free woman. Said said, "If their father dies and he is a slave who was not set free, their wala' belongs to the mawali of their mother." Malik said, "That is like the child of a woman who is a mawla who has been divorced by lian; the child is attached to the mawali of his mother and they are his mawali. If he dies, they inherit from him. If he commits a crime, they pay the blood-money for him. If his father acknowledges him, he is given a kinship to him and his wala' goes to the mawali of his father. They are his heirs, they pay his blood-money and his father is punished with the hadd-punishment." Malik said, "It is like that with a free-born woman divorced by lian. If her husband who curses her by lian does not acknowledge her child, the child is dealt with in the same way except that the rest of his inheritance after the inheritance of his mother and his brothers from his mother goes to all the muslims as long as he was not given kinship to his father. The child of the lian is attached to the patronage of the mawali of his mother until his father acknowledges him because he does not have a lineage or paternal relations. If his lineage is confirmed, it goes to his paternal relations." Malik said, "The generally agreed-on way of doing things among us about a child of a slave by a free woman, while the father of the slave is free, is that the grandfather (the father of the slave), attracts the wala' of his son's free children by a free woman. They leave their inheritance to him as long as their father is a slave. If the father becomes free, the wala' returns to his mawali. If he dies and he is still a slave, the inheritance and the wala' go to the grandfather. If the slave has two free sons, and one of them dies while the father is still a slave, the grandfather, the father of the father, attracts the wala' and the inheritance." Malik spoke about a slave-girl who was set free while she was pregnant and her husband was a slave and then her husband became free before she gave birth, or after she gave birth. He said, "The wala' of what is in her womb goes to the person who set the mother free because slavery touched the child before the mother was set free. It is not treated in the same way as a child conceived by its mother after she has been set free because the wala' of such a child, is attracted by the father when he is set free." Malik said that if a slave asked his master's permission to free a slave of his and his master gave permission, the wala' of the freed slave went to the master of his master, and his wala' did not return to the master who had set him free, even if he were to become free himself." Malik related to me from Abdullah ibn Abi Bakr ibn Muhammad ibnAmr ibn Hazm from Abd al-Malik ibn Abi Bakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham that his father told him that al-Asi ibn Hisham haddied and left three sons, two by one wife and one by another wife. Oneof the two with the same mother died and left property and mawali. Hisfull brother inherited his property and the wala' of his mawali. Thenhe also died, and left as heirs his son and his paternal half brother.His son said, "I obtain what my father inherited of property and thewala' of the mawali." His brother said, "It is not like that. Youobtain the property. As for the wala' of the mawali, it is not so. Doyou think that had it been my first brother who died today, I wouldnot have inherited from him?" They argued and went to Uthman ibnAffan. He gave a judgement that the brother had the wala' of themawali. Malik related to me from Abdullah ibn Abi Bakr ibn Hazm that hisfather told him that he was sitting with Aban ibn Uthman, and anargument was brought to him between some people from the Juhayna tribeand some people from the Banu al-Harith ibn al-Khazraj. A woman of theJuhayna tribe was married to a man from the Banu al-Harith ibn al-Khazraj, called Ibrahim ibn Kulayb. She died and left property andmawali, and her son and husband inherited them from her. Then her sondied and his heirs said, "We have the wala' of the mawali. Her sonobtained them." Those of the Juhayna said, "It is not like that. Theyare the mawali of our female associate. When her child died, we havetheir wala' and we inherit them." Aban ibn Uthman gave a judgementthat the people from the Juhayna tribe did indeed have the wala' ofthe mawali. Malik related to me that he had heard that Said ibn al-Musayyabspoke about a man who died and left three sons and left mawali whom hehad freed. Then two of his sons died and left children. He said, "Thethird remaining son inherits the mawali. When he dies, his childrenand the children of his brothers share equally in the wala' of themawali." Malik related to me that he had asked Ibn Shihab about a slavewho was released. He said, "He gives his wala' to whomever he likes.If he dies and has not given his wala' to anyone, his inheritance goesto the muslims and his blood-money is paid by them." Maliksaid, "The best of what has been heard about a slave who is releasedis that no one gets his wala', and his inheritance goes to themuslims, and they pay his blood-money." Malik said that whenthe slave of a jew or christian became muslim and he was freed beforebeing sold, the wala' of the freed slave went to the muslims. If thejew or christian became muslim afterwards, the wala' did not revert tohim. " He said, "However, if a jew or christian frees a slavefrom their own deen, and then the freed one becomes muslim before thejew or christian who freed him becomes muslim and then the one whofreed him has become muslim, his wala' reverts to him because thewala' was confirmed for him on the day he freed him." Maliksaid that the muslim child of a jew or christian inherited the mawaliof his jewish or christian father when the freed mawla became muslimbefore the one who freed him became muslim. If the freed one wasalready muslim when he was freed, the muslim children of the christianor jew had nothing of the wala' of a muslim slave because the jew andthe christian did not have the wala'. The wala' of a muslim slave wentto the community of muslims.