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Yahya said from Malik from Ibn Shihab from Urwa ibn az-Zubayr
that A'isha, the wife of the Prophet, may Allah bless him and grant
him peace, said, ''Utba ibn Abi Waqqas disclosed to his brother, Sad
ibn Abi Waqqas, that he was the father of the son of the slave-girl of
Zama, and made him promise to look after him (after his death). In the
year of the conquest, Sad took him and said, 'He is the son of my
brother. He covenanted with me about him.' Abd ibn Zama stood up and
said, 'He is my brother and the son of my father's slave-girl. He was
born on his bed.' They went to the Messenger of Allah, may Allah bless
him and grant him peace. Sad said, 'Messenger of Allah! He is the son
of my brother, he made a covenant with me about him.' Abd ibn Zama
said, 'He is my brother and the son of my father's slave-girl and was
born on my father's bed.' The Messenger of Allah, may Allah bless him
and grant him peace, said, 'He is yours, Abd ibn Zama.' Then the
Messenger of Allah, may Allah bless him and grant him peace, said, 'A
child belongs to the household (where he was born) and the adulterer
is stoned.' Then he told Sawda bint Zama, 'Veil yourself from him,'
since he saw in him a resemblance to Utba ibn Abi Waqqas." A'isha
added, "He did not see her until he met Allah, the Mighty, the
Majestic!"
Yahya related to me from Malik from Zayd ibn Aslam that the
Messenger of Allah, may Allah bless him and grant him peace, said, "If
someone changes his deen - strike his neck!"
The meaning of
the statement of the Prophet, may Allah bless him and grant him peace,
in our opinion and Allah knows best, is that "if someone changes his
deen, strike his neck!" refers to those who leave Islam for other than
it - like the heretics and their like, about whom it is known. They
are killed without being called to tawba because their tawba is not
recognised. They were hiding their kufr and publishing their Islam, so
I do not think that one calls such people to tawba, and one does not
accept their word. As for the one who goes out of Islam to something
else and divulges it, one calls him to tawba. If he does not turn in
tawba, he is killed. If there are people in that situation, I think
that one should call them to Islam and call them to tawba. If they
turn in tawba, that is accepted from them. If they do not turn in
tawba, they are killed. That does not refer as we see it, and Allah
knows best, to those who come out of Judaism to Christianity or from
Christianity to Judaism, nor to someone who changes his deen from the
various forms of deen except for Islam. Whoever comes out of Islam to
other than it and divulges that, that is the one who is referred to,
and Allah knows best!
Malik related to me from Amr ibn Yahya al-Mazini from his father
that ad-Dahhak ibn Khalifa watered his irrigation ditch from a large
source of water. He wanted to have it pass through the land of
Muhammad ibn Maslama, and Muhammad refused. Ad-Dahhak said to him,
"Why do you prevent me? It will benefit you. You can drink from it
first 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-Khattab
summoned Muhammad ibn Maslama and ordered him to clear the way.
Muhammad said, "No." Umar said, "Why do you prevent your brother from
what will benefit him and is also useful for you? You will take water
from it first and last and it will not harm you."
Muhammad
said, "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 passage
and ad-Dahhak did so.
Yahya said, "I heard Malik say that if a man pledges his garden
for a stated period and the fruits of that garden are ready before the
end of that period, the fruits are not included in the pledge with the
real estate, unless it is stipulated by the pledger in his pledge.
However, if a man receives a slave-girl as a pledge and she is
pregnant or she becomes pregnant after his taking her as a pledge, her
child is included with her.
"A distinction is made between
the fruit and the child of the slave-girl. The Messenger of Allah, may
Allah bless him and grant him peace, said, 'If someone sells a palm
which has been pollinated, the fruit belongs to the seller unless the
buyer stipulates its inclusion.' The undisputed way of doing things in
our community is that if a man sells a slave-girl or an animal with a
foetus in its womb, the foetus belongs to the buyer, whether or not
the buyer stipulates it. The palm is not like the animal. Fruit is not
like the foetus in its mother's womb. Part of what clarifies that is
also that it is the usage of people to have a man pawn the fruit of
the palm apart from the palm. No one pawns the foetus in its mother's
womb whether of slaves or animals."
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 man
came to the Messenger of Allah, may Allah bless him and grant him
peace, and asked him about finds. He said, 'Memorize the
characteristics of the object found, then publicise it for a year. If
the owner comes, give it to him. If not, then it is your business.' He
said, 'What about lost sheep, Messenger of Allah?' He said, 'They are
yours, 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. It
will reach water and eat trees until its owner finds it.' "
Malik related to me from Hisham ibn Urwa from his father from
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, that a man said to the Messenger of Allah, may Allah bless him
and grant him peace, "My mother died suddenly, and I think that had
she 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."
Yahya said that he heard Malik say, "The way of doing things
generally agreed upon in our community in the case of a man who dies
and 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 the
testimony of one man, and the confirmation of the one who confirmed it
is only permitted as regards his own share in the division of his
father's property. The one testified for is only given his due from
the share of the testifier."
Malik said, "An example of this
is that a man dies leaving two sons, and 600 dinars. Each of them
takes 300 dinars. Then one of them testifies that his deceased father
confirmed that so-and-so was his son. The one who testifies is obliged
to give 100 dinars to the one thus connected. This is half of the
inheritance of the one thought to be related, had he been related. If
the other confirms him, he takes the other 100 and so he completes his
right and his relationship is established. His position is similar to
that of a woman who confirms a debt against her father or her husband
and the other heirs deny it. She must pay to the person whose debt she
confirms, the amount according to her share of the full debt, had it
been confirmed against all the heirs. If the woman inherits an eighth,
she pays the creditor an eighth of his debt. If a daughter inherits a
half, she pays the creditor half of his debt. Whichever women confirm
him, pay him according to this.
Malik said, "If a man's
testimony 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 an
oath with one witness and he is given all his due. This is not the
position with women because a man's testimony is allowed and the
creditor must take an oath with the testimony of his witness, and take
all his due. If he does not take an oath, he only takes from the
inheritance of the one who confirmed him according to his share of the
debt, because he confirmed his right and the other heirs denied it. It
is permitted for him to confirm it."
Yahya said that he heard Malik speak about someone who pledged
goods as security for a loan, and they perished with the broker. The
one who took out the loan confirmed its specification. They agreed on
the amount of the loan, but challenged each other about the value of
the pledge, the pledger saying that it had been worth twenty dinars,
whilst the broker said that it had been worth only ten, and that the
amount loaned on security was twenty dinars. Malik said, "It is said
to the one in whose hand the pledge is, 'describe it.' If he describes
it he is made to take an oath on it and then the people of experience
evaluate that description. If the value is more than what was loaned
on security for it, it is said to the broker, 'Return the rest of his
due to the pledger.' If the value is less than what was loaned on
security for it, the broker takes the rest of his due from the
pledger. If the value is the exact amount of the loan, the pledge is
compensated for by the loan."
Yahya said that he heard Malik
say, "What is done in our community about two men who have a dispute
about an amount of money loaned on the security of a pledge - the
pledger claiming that he pledged it for ten dinars and the broker
insisting that he took the pledge as security for twenty dinars, and
the pledge is clearly in the possession of the broker - is that the
broker is made to take an oath when the value of the pledge is fully
known. If the value of the pledge is exactly what he swore that he had
loaned on security for it, the broker takes the pledge as his right.
He is more entitled to take precedence with an oath since he has
possession of the pledge. If the owner of the pledge wants to give him
the amount which he swore that he was owed, he can take the pledge
back. 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 sworn
to and take your pledge back, or you swear to what you said you
pledged it for.' If the pledger takes the oath, then what the broker
has increased over the value of the pledge will become invalid. If the
pledger does not take an oath, he must pay what the broker swore to."
Malik said, "If a pledge given on security for a loan
perishes, and both parties deny each other's rights, with the broker
who is owed the loan saying that he gave twenty dinars, and the
pledger who owes the loan saying that he was given only ten, and with
the broker who is owed the loan saying the pledge was worth ten
dinars, 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. Then
people with experience of it evaluate that description. If the value
of the pledge is estimated to be more than what the broker claims it
was, he takes an oath as to what he claimed, and the pledger is given
what is over from the value of the pledge. If its value is less than
what the broker claims of it, he is made to take an oath as to what he
claims is his. Then he demands settlement according to the actual
value of the pledge. The one who owes the loan is then made to take an
oath on the extra amount which remains owing against him to the
claimant after the price of the pledge is reached. That is because the
broker becomes a claimant against the pledger. If he takes an oath,
the rest of what the broker swore to of what he claimed above the
value of the pledge is invalidated. If he draws back, he is bound to
pay what remains due to the broker after the value of the pledge."
Yahya said, "Malik related to us from Ibn Shihab from Sa'id ibn
al-Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, said, 'The pledge given as security is not forfeited.' "
Malik said, "The explanation of that according to what we
think - and Allah knows best - is that a man gives a pledge to
somebody in security for something. The pledge is superior to that for
which he pawned it. The pledger says to the pawn-broker, 'I will bring
you your due, after such-and-such a time. If not, the pledge is yours
for what it was pawned for.' "
Malik said, "This transaction
is not good and it is not halal. This is what was forbidden. If the
owner brings what he pledged it for after the period, it is his. I
think that the time condition is void."
Yahya said that he heard Malik say, "The way of doing things in
our community about which there is no dispute, is that if a man gives
sadaqa to his son - sadaqa which the son takes possession of or which
is in the father's keeping and the father has had his sadaqa
witnessed, he cannot take back any of it because he cannot reclaim any
sadaqa."
Yahya said that he heard Malik say, "The generally
agreed-on way of doing things in our community in the case of someone
who gives his son a gift or grants him a gift which is not sadaqa is
that 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 the
strength of the gift his father has given him. The father cannot take
back anything from the gift after debts are started against it.
"If a man gives his son or daughter something and a woman marries
the man, and she only marries him for the wealth and the property
which his father has given him and so the father wants to take that
back, or, if a man marries a woman whose father has given her a gift
and he marries her with an increased bride-price because of the wealth
and property that her father has given, then the father says, 'I will
take that back,' then the father cannot take back any of that from the
son or daughter if it is as I have described to you."
Malik related to me from Said ibn Amr Shurahbil ibn Said ibn Sad
ibn Ubada from his father that his father said, ''Sad ibn Ubada went
out with the Messenger of Allah, may Allah bless him and grant him
peace, in one of his raids and his mother was dying in Madina. Someone
said to her, 'Leave a testament.' She said, 'In what shall I leave a
testament? The property is Sad's property.' Then she died before Sad
returned. When Sad ibn Ubada returned, that was mentioned to him. Sad
said,
'Messenger of Allah! Will it help her if I give sadaqa
for her?' The Messenger of Allah, may Allah bless him and grant him
peace, said, 'Yes' Sad said, 'Such-and-such a garden is sadaqa for
her,' naming the garden."
Yahya related to us from Malik from Ibn Shihab from Humayd ibn
Abd ar-Rah man ibn Awf and from Muhammad ibn an-Numan ibn Bashir that
they related to him that an-Numan ibn Bashir said that his father
Bashir brought him to the Messenger of Allah, may Allah bless him and
grant him peace, and said, "I have given this son of mine one of my
slaves." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Have you given each of your children the same as this?"
He said, "No." The Messenger of Allah, may Allah bless him and grant
him peace, said, "Then take the slave back."
Yahya said that Malik related from Ibn Shihab that Sunayn Abi
Jamila, a man from the Banu Sulaym, found an abandoned child in the
time 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, "I
found him lost, so I took him.'' Umar's advisor said to him,' 'Amir
al-Muminin! He is a man who does good." Umar inquired of him, "Is it
so?" He replied, "Yes." Umar ibn al-Khattab said, "Go, he is free, and
you have his wala' inheritance, and we will provide for him."
Yahya said that he heard Malik say, "What is done in our community
about an abandoned child is that he is free, and his wala' inheritance
belongs to the muslims, and they inherit from him and pay his blood
money."
Yahya said that he heard Malik say, "What is done in our
community about a man who rents an animal for a journey to a specified
place and then he goes beyond that place and further, is that the
owner of the animal has a choice. If he wants to take extra rent for
his animal to cover the distance overstepped, he is given that on top
of the first rent and the animal is returned. If the owner of the
animal likes to sell the animal from the place where he over-steps, he
has the price of the animal on top of the rent. If, however, the hirer
rented the animal to go and return and then he overstepped when he
reached the city to which he rented him, the owner of the animal only
has 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, only
half of the first rent is obliged for him. Had the animal died when he
reached the city to which it was rented, the hirer would not be liable
and the renter would only have half the rent."
Malik said,
"That is what is done with people who overstep and dispute about what
they took the animal for."
Malik said, "It is also like that
with some one who takes qirad-money from his companion. The owner of
the 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 his
money being invested in them. The one who takes the money then buys
what he was forbidden. By that, he intends to be liable for the money
and take the profit of his companion. When he does that, the owner of
the money has an option. If he wants to enter with him in the goods
according to the original stipulations between them about the profit,
he does so. If he likes, he has his capital guaranteed against the one
who took the capital and over stepped the mark."
Malik said,
"It is also like that with a man with whom another man invests some
goods. The owner of the property orders him to buy certain goods for
him which he names. He differs, and buys with the goods something
other than what he was ordered to buy. He exceeded his orders. The
owner of the goods has an option. If he wants to take what was bought
with his property, he takes it. If he wants the partner to be liable
for his capital he has that."
Yahya said that he heard Malik say, "What is done in our
community about some one who gives a gift not intending a reward is
that he calls witnesses to it. It is affirmed for the one to whom it
has been given unless the giver dies before the one to whom it was
given receives the gift."
He said, "If the giver wants to
keep the gift after he has had it witnessed, he cannot. If the
recipient claims it from him, he takes it."
Malik said, "If
some one gives a gift and then withdraws it and the recipient brings a
witness 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 he
refuses, the giver is made to take an oath. If he also refuses to take
an oath, he gives to the recipient what he claims from him if he has
at least one witness. If he does not have a witness, he has nothing .
"
Malik said, "If someone gives a gift not expecting anything
in return and then the recipient dies, the heirs are in his place. If
the giver dies before the recipient has received his gift, the
recipient has nothing. That is because he was given a gift which he
did not take possession of. If the giver wants to keep it, and he has
called witnesses to the gift, he cannot do that. If the recipient
claims his right he takes it."
Malik related to me that he heard that Abu Salama ibn Abd ar-
Rahman and Sulayman ibn Yasar were both asked, "Does one pronounce
judgement on the basis of an oath with one witness?" They both said,
"Yes."
Malik said, "The precedent of the sunna in judging by
an oath with one witness is that if the plaintiff takes an oath with
his witness, he is confirmed in his right. If he draws back and
refuses to take an oath, the defendant is made to take an oath. If he
takes an oath, the claim against him is dropped. If he refuses to take
an oath, the claim is confirmed against him."
Malik said,
"This procedure pertains to property cases in particular. It does not
occur in any of the hadd-punishments, nor in marriage, divorce,
freeing slaves, theft or slander. If some one says, 'Freeing slaves
comes under property,' he has erred. It is not as he said. Had it been
as he said, a slave could take an oath with one witness, if he could
find one, that his master had freed him.
"However, when a
slave lays claim to a piece of property, he can take an oath with one
witness and demand his right as the freeman demands his right."
Malik said, "The sunna with us is that when a slave brings
somebody who witnesses that he has been set free, his master is made
to take an oath that he has not freed him, and the slave's claim is
dropped."
Malik said, "The sunna about divorce is also like
that with us. When a woman brings somebody who witnesses that her
husband has divorced her, the husband is made to take an oath that he
has not divorced her. If he takes the oath, the divorce does not
proceed . "
Malik said, "There is only one sunna of bringing
a witness in cases of divorce and freeing a slave. The right to make
an oath only belongs to the husband of the woman, and the master of
the slave. Freeing is a hadd matter, and the testimony of women is not
permitted in it because when a slave is freed, his inviolability is
affirmed and the hadd punishments are applied for and against him. If
he commits fornication and he is a muhsan, he is stoned. If he kills a
slave, 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 demand
from the master of the slave payment of a debt, and a man and two
women testify to his right, that establishes the right against the
master of the slave so that his freeing him is cancelled if he only
has the slave as property, inferring by this case that the testimony
of women is permitted in cases of setting free. The case is not as he
suggests (i.e. it is a case of property not freeing). It is like a man
who frees his slave, and then the claimant of a debt comes to the
master and takes an oath with one witness, demanding his right. By
that, the freeing of the slave would be cancelled. Or else a man comes
who has frequent dealings and transactions with the master of the
slave. 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't
owe what he claims'. If he draws back and refuses to take an oath, the
one making the claim takes an oath and his right against the master of
the slave is confirmed. That would cancel the freeing of the slave if
it is confirmed that property is owed by the master."
Malik
said, "It is the same case with a man who marries a slave-girl and
then the master of the slave-girl comes to the man who has married her
and claims, 'You and so-and-so have bought my slave-girl from me for
such 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 they
testify to what he has said. The sale is confirmed and his claim is
considered true. So the slave-girl is haram for her husband and they
have to separate, even though the testimony of women is not accepted
in divorce."
Malik said, "It is also the same case with a man
who accuses a free man, so the hadd falls on him. A man and two women
come and testify that the one accused is a slave. That would remove
the hadd from the accused after it had befallen him, even though the
testimony of women is not accepted in accusations involving hadd
punishments."
Malik said, "Another similar case in which
judgement appears to go against the precedent of the sunna is that two
women testify that a child is born alive and so it is necessary for
him 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 he
dies, and it is not necessary that the two women witnesses should be
accompanied by a man or an oath even though it may involve vast
properties of gold, silver, live-stock, gardens and slaves and other
properties. However, had two women testified to one dirham or more or
less than that in a property case, their testimony would not affect
anything and would not be permitted unless there was a witness or an
oath with them."
Malik said, "There are people who say that
an oath is not acceptable with only one witness and they argue by the
word 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 2
ayat 282). Such people argue that if he does not bring one man and two
women, he has no claim and he is not allowed to take an oath with one
witness."
Malik said, "Part of the proof against those who
argue this, is to reply to them, 'Do you think that if a man claimed
property from a man, the one claimed from would not swear that the
claim was false?' If he swears, the claim against him is dropped. If
he refuses to take an oath, the claimant is made to take an oath that
his claim is true, and his right against his companion is established.
There is no dispute about this with any of the people nor in any
country. By what does he take this? In what place in the Book of Allah
does he find it? So if he confirms this, let him confirm the oath with
one witness, even if it is not in the Book of Allah, the Mighty, the
Majestic! It is enough that this is the precedent of the sunna.
However, man wants to recognise the proper course of action and the
location of the proof. In this there is a clarification for what is
obscure about that, if Allah ta'ala wills."
Yahya said from Malik that he heard from Sulayman ibn Yasar and
others that when they were asked whether the testimony of a man
flogged for a hadd crime was permitted, they said, "Yes, when
repentance (tawba) appears from him."
Malik related to me
that he heard Ibn Shihab being asked about that and he said the like
of what Sulayman ibn Yasar said.
Malik said, "That is what is
done in our community. It is by the word of Allah, the Blessed, the
Exalted, 'And those who accuse women who are muhsan, and then do not
bring four witnesses, flog them with eighty lashes, and do not accept
any testimony of theirs ever. They indeed are evil-doers, save those
who turn in tawba after that and make amends. Allah is Forgiving,
Merciful.' " (Sura 24 ayat 4).
Yahya said that he heard Malik say, "If a man buys a garment
which has a defect, a burn or something else, which the seller knows
about and that is testified against him or he confirms it, and the man
who has bought it causes a new tear which decreases the price of the
garment, and then he learns about the original defect, he can return
it to the seller and he is not liable for his tearing it.
"If
a man buys a garment which has a defect of a burn or flaw, and the one
who sold it to him claims that he did not know about it, and the buyer
has cut the garment or dyed it, then the buyer has an option . If he
wishes, he can have a reduction according to what the burn or flaw
detracts from the price of the garment and he can keep the garment, or
if he wishes to pay damages for what the cutting or dyeing has
decreased of the price of the garment and return it, he can do so.
"If the buyer has dyed the garment with a dye which increases
the value, the buyer has an option. If he wishes, he has a reduction
from the price of the garment according to what the defect diminishes
or if he wishes to become a partner with the one who sold the garment
he 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 dyeing
increased the value is five dirhams, then they are partners in the
garment, each according to his share. In this reckoning is the amount
by which the dyeing increases the price of the garment."
Malik related to me from Ibn Shihab from Urwa ibn az-Zubayr that
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, said, "Abu Bakr as-Siddiq gave me palm trees whose produce was
twenty awsuq from his property at al-Ghaba. When he was dying, he
said, 'By Allah, little daughter, there is no one I would prefer to be
wealthy after I die than you. There is no one it is more difficult for
me to see poor after I die than you. I gave you palm-trees whose
produce is twenty awsuq. Had you cut them and taken possession of
them, they would have been yours, but today they are the property of
the heirs, and they are your two brothers and your two sisters, so
divide 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, 'What
is 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.' "
