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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 that he heard Ibn Shihab say, "The precedent
of the sunna is that when a slave is freed, his property follows him."
Malik said, "One thing which makes clear that the property of
a slave follows him when he is freed is that when the contract
(mukatab) is written for his freedom, his property follows him even if
he did not stipulate it. That is because the bond of kitaba is the
bond of wala' when it is complete. The property of a slave and a
mukatab 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, in
which there is no dispute, is that when a slave is freed, his property
follows him and his children do not follow him, and when a mukatab
writes the contract for his freedom, his property follows him and his
children do not follow him."
Malik said, "One thing which
makes that clear is that when a slave or a mukatab are bankrupt, their
property is taken but the mothers of their children and their children
are not taken because they are not their property."
Malik
said, "Another thing which makes it clear is that when a slave is sold
and 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 injure
some one, he and his property are taken, and his children are not
taken."
Malik said, "A master who frees a slave of his and settles his
emancipation so that his testimony is permitted, his inviolability
complete, and his right to inherit confirmed, cannot impose
stipulations on him like what he imposes on a slave about property or
service, nor get him to do anything of slavery, because 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 give his partners
their shares so the slave is completely free."
Malik
commented, "If he owns the slave completely, it is more proper to free
him completely and not mingle any slavery with it."
Malik related to me from Hilal ibn Usama from Ata ibn Yasar that
Umar ibn al-Hakam said, "I went to the Messenger of Allah, may Allah
bless him and grant him peace, and said, 'Messenger of Allah, a slave
girl of mine was tending my sheep. I came to her and one of the sheep
was 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 struck
her on the face. As it happens, I have to set a slave free, shall I
free her?' The Messenger of Allah, may Allah bless him and grant him
peace, questioned her, 'Where is Allah?' She said, 'In heaven.' He
said, 'Who am I?' She said, 'You are the Messenger of Allah.' The
Messenger of Allah, may Allah bless him and grant him peace, said,
'Free her.' "
Malik related to me that he had heard that Abdullah ibn Umar was
asked whether a slave could be bought on the specific condition that
it was to be used to fulfil the obligation of freeing a slave, and he
said, "No."
Malik said, "That is the best of what I have
heard on the obligation of freeing slaves. Someone who has to set a
slave free because of an obligation on him, may not buy one on the
condition that he sets it free because if he does that, whatever he
buys is not completely a slave because he has reduced its price by the
condition he has made of setting it free."
Malik added,
"There is no harm, however, in someone buying a person expressly to
set him free."
Malik said, "The best of what I have heard on
the obligation of freeing slaves is that it is not permitted to free a
christian or a jew to fulfil it, and one does not free a mukatab or a
mudabbar or an umm walad or a slave to be freed after a certain number
of 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 47
ayat 4) The favour is setting free."
Malik said, "As for
obligations of freeing slaves which Allah has mentioned in the Book,
one only frees a mumin slave for them."
Malik said, "It is
like that in feeding poor people for kaffara. One must only feed
muslims and one does not feed anyone outside of the deen of Islam."
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 related to me from Abd ar-Rahman ibn Abi Amra al-Ansari
that his mother had wanted to make a bequest, but she delayed until
morning 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 I
free a slave for her?' Al-Qasim replied, 'Sad ibn Ubada said to the
Messenger of Allah, may Allah bless him and grant him peace, 'My
mother died, will it help her if I set a slave free for her?' The
Messenger of Allah, may Allah bless him and grant him peace, said
"Yes." "'
Malik related to me that he had asked Ibn Shihab about a slave
who 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 goes
to the muslims and his blood-money is paid by them."
Malik
said, "The best of what has been heard about a slave who is released
is that no one gets his wala', and his inheritance goes to the
muslims, and they pay his blood-money."
Malik said that when
the slave of a jew or christian became muslim and he was freed before
being sold, the wala' of the freed slave went to the muslims. If the
jew or christian became muslim afterwards, the wala' did not revert to
him. "
He said, "However, if a jew or christian frees a slave
from their own deen, and then the freed one becomes muslim before the
jew or christian who freed him becomes muslim and then the one who
freed him has become muslim, his wala' reverts to him because the
wala' was confirmed for him on the day he freed him."
Malik
said that the muslim child of a jew or christian inherited the mawali
of his jewish or christian father when the freed mawla became muslim
before the one who freed him became muslim. If the freed one was
already muslim when he was freed, the muslim children of the christian
or jew had nothing of the wala' of a muslim slave because the jew and
the christian did not have the wala'. The wala' of a muslim slave went
to the community of muslims.
Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah
ibn Utba ibn Masud that one of the Ansar came to the Messenger of
Allah, 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 who
is a mumina. If you think that she is mumina, I will free her." The
Messenger of Allah, may Allah bless him and grant him peace,
questioned her, "Do you testify that there is no god but Allah?" She
said, "Yes." "Do you testify that Muhammad is the Messenger of Allah?"
She said, "Yes." "Are you certain about the rising after death?" She
said, "Yes." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Free her."
Malik related to me from Hisham ibn Urwa from his father that
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, said, "Barira came to me and said, 'I have written myself as
mukatab for my people for nine uqiyas, one uqiya per year, so help
me.' A'isha said, 'If your people agree that I pay it all to them for
you, 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 Allah
bless him and grant him peace, was sitting. She said to A'isha, 'I
offered that to them and they refused me unless they had the wala'.'
The Messenger of Allah, may Allah bless him and grant him peace, heard
that and asked her about it A'isha told him and the Messenger of
Allah, may Allah bless him and grant him peace, said, 'Take her and
stipulate that the wala' is yours, for the wala' is for the one who
sets free.' So A'isha did that and then the Messenger of Allah, may
Allah 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 wrong
with the people who make conditions which are not in the Book of
Allah? Any condition which is not in the Book of Allah is invalid even
if it is a hundred conditions. The decree of Allah is truer and the
conditions of Allah are firmer, and the wala' only belongs to the one
who sets free.' "
Traductions
🇬🇧 English
Setting Free and Wala'
🇸🇦 Arabic
كتاب العتق والولاء
