40. The Mudabbar

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." Malik spoke about a mudabbar who said to his master, "Free meimmediately and I will give fifty dinars which I will have to pay ininstalments." His master said, "Yes. You are free and you must payfifty dinars, and you will pay me ten dinars every year." The slavewas satisfied with this. Then the master dies one, two or three daysafter that. He said, "The freeing is confirmed and the fifty dinarsbecome a debt against him. His testimony is permitted, hisinviolability as a free man is confirmed, as are his inheritance andhis liability to the full hudud punishments. The death of his master,however, does not reduce the debt for him at all." Malik saidthat if a man who made his slave a mudabbar died and he had someproperty at hand and some absent property, and in the property at handthere was not enough (in the third he was allowed to bequeath) tocover the value of the mudabbar, the mudabbar was kept there togetherwith this property, and his tax (kharaj) was gathered until themaster's absent property was clear. Then if a third of what his masterleft would cover his value, he was freed with his property and whathad gathered of his tax. If there was not enough to cover his value inwhat his master had left, as much of him was freed as the third wouldallow, and his property was left in his hands. Malik said, "The generally agreed-on way of doing things in ourcommunity is that any setting-free which a man makes in a bequest thathe wills in health or illness can be rescinded by him when he likesand changed when he likes as long as it is not a tadbir. There is noway to rescind a tadbir once he has made it. "As for everychild born to him by a slave-girl who he wills to be set free but hedoes not make mudabbara, her children are not freed with her when sheis freed. That is because her master can change his will when he likesand rescind it when he likes, and being set free is not confirmed forher. She is in the position of a slave-girl whose master says, 'If so-and-so remains with me until I die, she is free.' " (i.e. he does notmake a definite contract.) Malik said, "If she fulfils that,that is hers. If he wishes, before that, he can sell her and her childbecause he has not entered her child into any condition he has madefor her. "The bequest in setting free is different from thetadbir. The precedent of the sunna makes a distinction between them.Had a bequest been in the position of a tadbir, no testator would beable to change his will and what he mentioned in it of setting free.His property would be tied up and he would not be able to use it." Malik said about a man who made all his slaves mudabbar whilehe was well and they were his only property, "If he made some of themmudabbar before the others, one begins with the first until the thirdof his property is reached. (i.e. their value is matched against thethird, and those whose value is covered are free.) If he makes themall mudabbar in his illness, and says in one statement, 'So-and-so isfree. So-and-so is free. So-and-so is free if my death occurs in thisillness,' or he makes them all mudabbar in one statement, they arematched against the third and one does not begin with any of thembefore the others. It is a bequest and they have a third of hisproperty divided between them in shares. Then the third of hisproperty frees each of them according to the extent of his share. "No single one of them is given preference when that all occurs inhis illness." Malik spoke about a master who made his slave amudabbar and then he died and the only property he had was themudabbar slave and the slave had property. He said, "A third of themudabbar is freed and his property remains in his possession." Malik said about a mudabbar whose master gave him a kitaba andthen the master died and did not leave any property other than him, "Athird of him is freed and a third of his kitaba is reduced, and heowes two-thirds." Malik spoke about a man who freed half ofhis slave while he was ill and made irrevocable his freeing half ofhim or all of him, and he had made another slave of his mudabbarbefore that. He said, "One begins with the slave he made mudabbarbefore the one he freed while he was ill. That is because the mancannot revoke what he has made mudabbar and cannot follow it with amatter which will rescind it. When this mudabbar is freed, then whatremains of the third goes to the one who had half of him freed so asto complete his setting-free entirely in the third of the property ofthe deceased. If what is left of the third does not cover that,whatever is covered by what is left of the third is freed after thefirst mudabbar is freed . " Malik related to me from Nafi that Abdullah ibn Umar made two ofhis slave-girls mudabbara, and he had intercourse with them while theywere mudabbara. Malik related to me from Yahya ibn Said that Said ibn al-Musayyabused to say, "When a man makes his slave-girl mudabbara, he can haveintercourse with her. He cannot sell her or give her away and herchildren are in the same position as her." Malik said, "The generally agreed on way of doing things in ourcommunity about a mudabbar is that the owner cannot sell him or changethe position in which he has put him. If a debt overtakes the master,his creditors cannot sell the mudabbar as long as the master is alive.If the master dies and has no debts, the mudabbar is included in thethird (of the bequest) because he expected his work from him as longas he lived. He cannot serve him all his life, and then he frees himfrom his heirs out of the main portion of his property when he dies.If the master of the mudabbar dies and has no property other than him,one third of him is freed, and two thirds of him belong to the heirs.If the master of the mudabbar dies and owes a debt which encompassesthe mudabbar, he is sold to meet the debt because he can only be freedin the third (which is allowed for bequest) ." He said, "Ifthe debt only includes half of the slave, half of him is sold for thedebt. Then a third of what remains after the debt is freed. " Malik said, "It is not permitted to sell a mudabbar and it is notpermitted for anyone to buy him unless the mudabbar buys himself fromhis master. He is permitted to do that. Or else some one gives themaster of the mudabbar money and his master who made him a mudabbarfrees him. That is also permitted for him." Malik said, "Hiswala' belongs to his master who made him a mudabbar." Maliksaid, "It is not permitted to sell the service of a mudabbar becauseit is an uncertain transaction since one does not know how long hismaster will live. That is uncertain and it is not good." Malik spoke about a slave who was shared between two men, and one ofthem made his portion mudabbar. He said, "They estimate his valuebetween them. If the one who made him mudabbar buys him, he is allmudabbar. If he does not buy him, his tadbir is revoked unless the onewho retains ownership of him wishes to give his partner who made himmudabbar his value. If he gives him to him for his value, that isbinding, and he is all mudabbar." Malik spoke about thechristian man who made a christian slave of his mudabbar and then theslave became muslim. He said, "One separates the master and the slave,and the slave is removed from his christian master and is not solduntil his situation becomes clear. If the christian dies and has adebt, his debt is paid from the price of the slave unless he has inhis estate what will pay the debt. Then the mudabbar is set free." Malik related to me that he heard that Umar ibn Abd al-Aziz gavea judgement about the mudabbar who did an injury. He said, "The mastermust surrender what he owns of him to the injured person. He is madeto serve the injured person and recompense (in the form of service) istaken from him as the blood-money of the injury. If he completes thatbefore his master dies, he reverts to his master." Maliksaid, "The generally agreed on way of doing things in our communityabout a mudabbar who does an injury and then his master dies and themaster has no property except him is that the third (allowed to bebequeathed) is freed, and then the blood-money for the in jury isdivided into thirds. A third of the blood-money is against the thirdof him which was set free, and two-thirds are against the two-thirdswhich the heirs have. If they wish, they surrender what they have ofhim to the party with the injury, and if they wish, they give theinjured person two-thirds of the blood-money and keep their portion ofthe slave. That is because that injury is a criminal action by theslave and it is not a debt against the master by which whateversetting free and tadbir the master had done would be abrogated. Ifthere were a debt to people held against the master of the slave, aswell as the criminal action of the slave, part of the mudabbar wouldbe sold in proportion to the blood-money of the injury and accordingto the debt. Then one would begin with the blood-money which was forthe criminal action of the slave and it would be paid from the priceof the slave. Then the debt of his master would be paid, and then onewould look at what remained after that of the slave. His third would bbe set free, and two-thirds of him would belong to the heirs. That isbecause the criminal action of the slave is more important than thedebt of his master. That is because, if the man dies and leaves amudabbar slave whose value is one hundred and fifty dinars, and theslave strikes a free man on the head with a blow that lays open theskull, and the blood-money is fifty dinars, and the master of theslave has a debt of fifty dinars, one begins with the fifty dinarswhich are the blood-money of the head wound, and it is paid from theprice of the slave. Then the debt of the master is paid. Then onelooks at what remains of the slave, and a third of him is set free andtwo-thirds of him remain for the heirs. The blood-money is morepressing against his person than the debt of his master. The debt ofhis master is more pressing than the tadbir which is a bequest fromthe third of the property of the deceased. None of the tadbir ispermitted while the master of the mudabbar has a debt which is notpaid. It is a bequest. That is because Allah, the Blessed, theExalted, said, 'After any bequest that is made or any debt.' " (Sura 4ayat 10) Malik said, "If there is enough in the thirdproperty that the deceased can bequeath to free all the mudabbar, heis freed and the blood-money due from his criminal action is held as adebt against him which follows him after he is set free even if thatblood-money is the full blood-money. It is not a debt on the master." Malik spoke about a mudabbar who injured a man and his mastersurrendered him to the injured party, and then the master died and hada debt and did not leave any property other than the mudabbar, and theheirs said, "We surrender the mudabbar to the party," whilst thecreditor said, "My debt exceeds that." Malik said that if thecreditor's debt did exceed that at all , he was more entitled to itand it was taken from the one who owed the debt, according to what thecreditor was owed in excess of the blood-money of the injury. If hisdebt did not exceed it at all, he did not take the slave. Malik spoke about a mudabbar who did an injury and had property, andhis master refused to ransom him. He said, "The injured party takesthe property of the mudabbar for the blood-money of his injury. Ifthere is enough to pay it, the injured party is paid in full for theblood-money of his injury and the mudabbar is returned to his master.If there is not enough to pay it, he takes it from the blood-money anduses the mudabbar for what remains of the blood-money." Malik said in the case of an umm walad who injured someone, "Theblood-money of that injury is the responsibility of her master fromhis property, unless the blood-money of the injury is greater than thevalue of the umm walad. Her master does not have to pay more than hervalue. That is because when the master of a slave or slave-girlsurrenders his slave or slave-girl for an injury which one of them hasdone, he does not owe any more than that, even if the blood-money isgreater. As the master of the umm walad cannot surrender her becauseof the precedent of the sunna, when he pays her price, it is as if hehad surrendered her. He does not have to pay more than that. This isthe best of what I have heard about the matter. The master is notobliged to assume responsibility for more than an umm walad's valuebecause of her criminal action."