37.1 The Command to Write Wills
1 Malik related to me from Nafi' from 'Abdullah ibn 'Umar that the Messenger of Allah, may Allah be pleased with him, said, "It is the duty of a Muslim man who has something to be given as a bequest not to spend two nights without having a written will in his possession."
[cf Bukhari 2587]
Malik said, "The generally agreed on way of doing things in our community is that when the testator writes something in health or illness as a bequest, and it involves emancipation of or such things, he can alter it in any way he chooses until he is on his death-bed. If he prefers to abandon a bequest or change it, he can do so unless he has made a slave mudabbar - there is no way to change what he has made mudabbar. He is allowed to change his testament because the Messenger of Allah, may Allah bless him and grant him peace, said, "It is the duty of a Muslim man who has something to be given as a bequest not to spend two nights without having a written will in his possession."
Malik explained, "Had the testator not been able to change his will nor what was mentioned in it about freeing slave, testators might withhold from making bequests from their property, whether it be freeing slaves or other than that. A man makes a bequest while he is healthy or travelling (i.e. he does not wait until he is on his death-bed)."
Malik summed up, "The way of doing things in our community about which there is no dispute is that he can change whatever he likes of such things except for the granting of mudabbar status."
37.2 Permissibility of the Bequest of Children, Simpletons, Lunatics and Idiots
2 Malik related to me from 'Abdullah ibn Abi Bakr ibn Hazm that 'Amr ibn Sulaym az-Zuraqi informed his father that it had been said to 'Umar ibn al-Khattab, ""There is an adolescent boy here who has not yet reached puberty. He is from the Ghassan tribe and his heir is in Syria. He has property and the only relative he has here is the daughter of one of his paternal uncles." 'Umar ibn al-Khattab instructed, "Let him make her a bequest." He willed her a property called the well of Jusham.
Malik added, "That property was sold for 30,000 dirhams, and the daughter of the paternal uncle to whom he willed it was none other than the mother of 'Amr ibn Sulayman az-Zuraqi."
3 Malik related to me from Yahya ibn Sa'id from Abu Bakr ibn Hazm that a boy from Ghassan was dying in Madina while his heir was in Syria. This was mentioned to 'Umar ibn al-Khattab. He was told, "So-and-so is dying, should he make a bequest?" He said, "Let him make a bequest."
Yahya ibn Sa'id said that Abu Bakr had said, "He was a boy of ten or twelve." Yahya said, "He made the well of Jusham a bequest, and her family sold it for 30,000 dirhams."
Yahya said that he heard Malik say, "The generally agreed on way of doing things in our community is that a simpleton, an idiot, or a lunatic who recovers from time to time can make wills if they have enough of their wits about them to recognise what they will. Someone who has not enough wits to recognise what he wills and is totally lacking in comprehension cannot make a bequest."
37.3 Limiting the Bequest to One-Third of the Estate
4 Malik related to me from Ibn Shihab from 'Amir ibn Sa'd ibn Abi Waqqas that his father said, "The Messenger of Allah, may Allah bless him and grant him peace, came to me to treat me for a pain which had became hard to bear in the year of the Farewell Hajj. I said, 'Messenger of Allah, you can see how far the pain has reached me. I have property and only my daughter to inherit from me. Shall I give two-thirds of my property as sadaqa?' The Messenger of Allah, may Allah bless him and grant him peace, said, 'No.' I asked, 'Half?' He said, 'No.' Then the Messenger of Allah, may Allah bless him and grant him peace, said, 'A third, and a third is a lot. Leaving your heirs rich is better than leaving them poor to beg from people. You never spend anything on maintenance desiring the Face of Allah by it but that you are rewarded for it, even what you appoint for your wife.' Sa'd said, 'Messenger of Allah, will I be left here in Makka after my companions have left for Madina?' The Messenger of Allah, may Allah bless him and grant him peace, said, 'If you are left behind and do sound deeds you will increase your degree and elevation by them. Perhaps you will be left behind so that some people may benefit by you and others may be harmed by you. O Allah! make the hijra of my companions complete and do not turn them back on their heels. The unfortunate one is Sa'id ibn Khawla.' The Messenger of Allah, may Allah bless him and grant him peace, was distressed on his account for he had died at Makka."
[cf Bukhari 2591. Also in Muslim]
Yahya said that he heard Malik speak about a man who willed a third of his property to a man and said as well, "My slave will serve so-and-so (another man) for as long as he lives, then he is free," then that was investigated and the slave was found to constitute a third of the property of the deceased. Malik said, "The service of the slave is evaluated. Then the two of them divide it between them. The one who was willed a third takes his third and the one who was willed the service of the slave takes what was evaluated for him of the slave's service. Each of them takes from the service of the slave or from his wage if he has a wage according to his share. If the one who was given the service of the slave for as he long as lived dies, then the slave is set free."
Yahya said that he heard Malik speak about someone who willed his third and said, "So-and-so has such-and-such and so-and-so has such-and-such," naming some of his property and his heirs protested that it was more than a third." Malik said, "The heirs then have an option between giving the beneficiaries their full bequests or between dividing among the beneficiaries the third of the property of the deceased and surrendering to them their third. If they wish, their rights in it reach as far as they reach."
37.4 Dealing with the Property of the Pregnant Woman, the Sick Person and Someone Present in Battle
Yahya said that he heard Malik say, "The best of what I have heard about the testament of the pregnant woman and about what settlements she is permitted to make from her property is that the pregnant woman is like a sick person. When the sickness is light and one does not fear for the sick person, he does with his property what he likes. If the illness is such that his life is feared for, he can only dispose of a third of his estate."
He said, "It is the same with a woman who is pregnant. The beginning of the pregnancy is good news and joy. It is not illness and not to be feared because Allah the Blessed, the Exalted, says in His Book, 'So We gave her the good news of Ishaq and Ya'qub after Ishaq' (11:71). And He says, 'She bore a light load and carried it around. Then when it became heavy they called on Allah, their Lord, "If You grant us a healthy child, we will be among the thankful!"' (7:189)
"When a pregnant woman becomes heavy, she is only permitted to dispose of a third of her estate. The beginning of this restriction is after six months. Allah, the Blessed, the Exalted, says in His Book, 'Mothers should nurse their children for two full years.' (2:233) And He says, 'His bearing and weaning take thirty months.' (46:15)
"When six months have gone by since the woman conceived, she is only permitted to dispose of a third of her property."
Yahya said that he heard Malik say, "A man who is advancing in the row for battle can only dispose of a third of his property. He is in the same position as a pregnant woman or an ill person who is feared for as long as that situation pertains."
37.5 Bequests to Heirs and Right of Possession
Yahya said that he heard Malik say, "This ayat is abrogated. It is the word of Allah, the Blessed, the Exalted, 'If he has some goods to leave, to make a will in favour of his parents and relatives.' (2:180) What came down about the division of the fixed shares of inheritance in the Book of Allah, the Mighty, the Exalted, abrogates it."
Yahya said that he heard Malik speak about an invalid who made a bequest and asked his heirs to give him permission to make a bequest when he was so ill that he only had command of a third of his property, and they gave him permission to leave some of his heirs more than his third. Malik said, "They cannot revoke that. Had they been permitted to do so, every heir would have done that and then when the testator died, they would take that for themselves and prevent him from bequeathing his third and what was permitted to him with respect to his property."
Malik said, "If he asks permission of his heirs to grant a bequest to an heir while he is well and they give him permission that is not binding on them. The heirs can rescind that if they wish. That is because when a man is well, he is entitled to all his property and can do what he wishes with it. If he wishes, he can spend all of it. He can spend it and give sadaqa with it or give it to whomever he likes. His asking permission of his heirs is permitted for the heirs when they give him permission when authority over all his property is closed off from him and nothing outside of the third is permitted to him, and when they are more entitled to two-thirds of his property than he himself is. That is when their permission becomes relevant. If he asks one of the heirs to give his inheritance to him when he is dying and the heir agrees and then the dying man does not dispose of it at all, it is returned to the one who gave it unless the dying man says to him, 'So-and-so (one of his heirs) is weak, and I would like for you to give him your inheritance.' So he gives it to him. That is permitted when the dying man specifies it for him."
Malik said, "When a man gives the dying man free use of his share of the inheritance and the dying man distributes some of it and some remains, the residue is returned to the giver after the man has died."
Yahya said that he heard Malik speak about someone who made a bequest and mentioned that he had given one of his heirs something which he had not yet taken possession of, so the heirs refused to permit that. Malik said, "Such a gift returns to the heirs as inheritance according to the Book of Allah, because the deceased did not mean that to be taken out of the third and the heirs do not have a portion in the third (which the dying man is allowed to bequeath)."
37.6 Effeminate Men and the Custody of Children
5 Malik said from Hisham ibn 'Urwa from his father that an effeminate man was once in the company of Umm Salama, the wife of the Prophet, may Allah bless him and grant him peace. He said to 'Abdullah ibn Abi Umayya while the Messenger of Allah, may Allah bless him and grant him peace, was listening. "'Abdullah! If Allah grants you victory over Ta'if tomorrow, I will lead you to the daughter of Ghaylan. She has four folds on her front and eight folds on her back." The Messenger of Allah, may Allah bless him and grant him peace, said, "This sort of man should not mix freely with you." (It was customary to allow men with no sexual inclination to enter freely where there were women.)
[In Bukhari and Muslim]
6 Malik related to me that Yahya ibn Sa'id said that he heard al-Qasim ibn Muhammad say, "A woman of the Ansar was married to 'Umar ibn al-Khattab. She bore to him 'Asim ibn 'Umar and then he separated from her. 'Umar came to Quba and found his son 'Asim playing in the courtyard of the mosque. He took him by the arm and placed him before him on his mount. The child's grandmother argued with 'Umar about the child, so they went to Abu Bakr as-Siddiq. 'Umar said, 'My son!' The woman said, 'My son!' Abu Bakr said, 'Do not interfere between a child and its mother.' 'Umar did not repeat his words."
Yahya said that he heard Malik say, "This is what I would have done in that situation."
37.7 Liability for Defective Goods
Yahya said that he heard Malik speak about a man who bought goods - animals or clothes or wares - and the sale was found to be not permitted so it was revoked and the one who had taken the goods was ordered to return the owner his goods. Malik said, "The owner of the goods only has their value on the day they were taken from him, and not on the day they are returned to him. That is because the buyer are liable for them from the day he took them and whatever loss is in them after that is against him. For that reason, their increase and growth is also his. A man may take the goods at a time when they are selling well and are in demand and then have to return them at a time when they have fallen in price and no-one wants them. For instance, the buyer may take the goods from the other man and sell them for ten dinars or keep them at that price is that. Then he may have to return them while their price is only a dinar. He should not go off with nine dinars from the seller's property. Or perhaps they are taken by the buyer and he sells them for a dinar or keeps them while their price is only a dinar, then he has to return them and their value on the day he returns them is ten dinars. The buyer should not have to pay ten dinars from his property to the owner. He is only obliged to pay the value of what he took possession of on the day it was taken."
He added, "Part of what clarifies this is that when a thief steals goods, only their price on the day he stole them is considered. If cutting off the hand is necessary because the thief is imprisoned until his situation is examined or he flees and then is caught, the delay of the cutting off of the hand does not cancel the hadd which was obliged for him on the day he stole, for him even if those goods become cheap after that. Nor does delay oblige cutting off the hand if it was not obliged on the day he took those goods, even if they become expensive after that."
37.8 General Chapter on Making Judgement and Shying Away from it
7 Malik related to me from Yahya ibn Sa'id that Abu'd-Darda' wrote to Salman al-Farsi, "Come immediately to the Holy Land." Salman wrote back to him, "Land does not make anyone holy. A man's deeds make him holy. I have heard that you were put up as a doctor to treat and cure people. If you are innocent, then may you have delight! If you are a quack, then beware lest you kill a man and enter the Fire!" When Abu'd-Darda' judged between two men, and they turned from him to go, he would look at them and say, "Come back to me, and tell me your story again. A quack, by Allah!"
Yahya said that he heard Malik say, "If someone makes use of a slave without the permission of its master in anything involving danger to his person, whose equivalent has a fee, he is liable for what befalls the slave if anything befalls him. If the slave is safe and his master asks for his wage for what he has done, that is the master's right. This is what is done in our community."
Yahya said that he heard Malik say about a slave who is part free and part enslaved, "His property is suspended in his hand and he cannot begin anything with it. He eats from it and clothes himself in an approved fashion. If he dies, his property belongs to the one to whom he is enslaved."
Yahya said that he heard Malik say, "The way of doing things in our community is that a parent can take his child to account for what he spends on him from the day the child has property, cash or goods if the parent so desires."
8 Malik related to me from 'Umar ibn 'Abd ar-Rahman ibn Dalaf al-Muzani from his father that a man from the Juhayna tribe used to buy camels before people set out for the Hajj and sell them at a higher price. Then he travelled quickly and used to arrive in Makka before the others who set out for Hajj. He went bankrupt and his situation was put before 'Umar ibn al-Khattab, who said, "O People! Al-Usayfi', al-Usayfi' of the Juhayna, was satisfied with his deen and his trust because it was said of him that he arrived before the others on Hajj. He used to incur debts which he was not careful to repay, so all of his property has been eaten up by it. Whoever has a debt against him, let him come to us tomorow and we will divide his property between his creditors. Beware of debts! Their beginning is a worry and their end is destitution!"
37.9 Damages and Injuries Caused by Slaves
Yahya said that he heard Malik say, "The sunna with us about crimes committed by slaves is that the hand is not cut off for any harm that a slave causes a man, or something he pilfers, or something guarded which he steals, or hanging dates he cuts down or ruins or steals. Such things are counted against the slave's person and do not exceed the price of the slave whether it is little or much. If his master wishes to give the value of what the slave has taken or ruined, or pay the blood-price for the injury he has caused, he pays it and keeps his slave. If he wishes to surrender him, he surrenders him, and none of that is against him. The master has the option in that."
37.10 What is Permitted of Gifts
9 Malik related to me from Ibn Shihab from Sa'id ibn al-Musayyab that 'Uthman ibn 'Affan said, "If someone gives something to his small child who is not old enough to look after it himself, and in order that his gift might be permitted he makes the gift public and has it witnessed, the gift is permitted, even if the father keeps charge of it."
Malik said, "What is done in our community is that if a man gives his small child some gold or silver and then dies whilst it is in his own keeping, the child has none of it unless the father has set it aside in coin or placed it with a man to keep for the son. If he has done that, it is permitted for the son."
38.1 Freeing a Share Held in a Slave
1 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, he must buy out his partners so that the slave is completely freed. If he does not have the money, then he is partially free."
[cf Bukhari 2386]
Malik said, "The generally agreed on way of doing things among us in the case of a slave whose master makes a bequest to free part of him after his death - a third, a fourth, a half, or any such share, is that only the portion of him is 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' is confirmed. That is not to be borne by another's property unless he bequeaths, within the third of his property, what remains of a slave 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 he is completely free of him, if it is within the third of his property that he has access to, because he is not considered to be the same 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."
38.2 Making Conditions when Freeing a Slave
2 Malik said, "A master who frees a slave of his and settles his emancipation so that his testimony is permited, his inviolability is complete, and his right to inherit confirmed, cannot impose stipulations on him like those imposed on a slave about property or service, nor can he get him to do anything connected with 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 entire price of the slave justly evaluated for him, he must give his partners their shares so that 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."
38.3 People who Free Slaves and Own No Other Property
3 Malik related to me from Yahya ibn Sa'id and somebody else from al-Hasan ibn Abi al-Hasan al-Basri and from Muhammad ibn Sirin that a man in the time of the Messenger of Allah, may Allah bless him and grant him peace, freed six of his slaves while he was dying. The Messenger of Allah, may Allah bless him and grant him peace, drew lots between them and freed a third of those slaves.
Malik added that he had heard that the man did not have any property besides them.
[In Muslim]
4 Malik related to me from Rabi'a ibn Abi 'Abd ar-Rahman that a man in the time of Aban ibn 'Uthman's amirate freed all of his slaves and they were his sole property. Aban bn 'Uthman took charge of the slaves and they were divided into three groups. Then he drew lots on the basis that whichever group drew the short straw would be free. The straw fell to one of the thirds, and that third was set free.
38.4 Judgement on the Property of Slaves when They are Set Free
5 Malik related to me that he heard Ibn Shihab say, "The precedent of the sunna is that when a slave is set free, his property follows him."
Malik said, "One thing which makes clear that a slave's property follows him when he is freed is that when the contract (kitaba) is written for his freedom, his property follows him even if he does his freedom, his property follows him even if he does not stipulate that. That is because the bond of kitaba is the bond of wala' when it is complete. The property of a slave and a mukatab are not treated in the same way as any children they may have. Their children are only treated in the same way as their property. This is because the sunna, about 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 but his children do not follow him."
Malik said, "One thing which makes this clear is that when a slave or mukatab becomes 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 inclusion of his property, his children are not included in that property."
Malik said, "Another thing which makes it clear is that when a slave does injury to someone, he and his property are taken, but his children are not taken."
38.5 Freeing Slaves who are Umm Walads and a General Section on Freeing
6 Malik related to me from Nafi' from 'Abdullah ibn 'Umar that 'Umar ibn al-Khattab said, "If a slave-girl gives birth to a child by her master, he must not sell her, give her away, or bequeath her. He enjoys her and when he dies, she is free."
7 Malik related to me that he had heard that a slave-girl who had been beaten by her master with a red-hot iron came to 'Umar ibn al-Khattab 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 be set free while he has a debt which exceeds the value of his property. A boy is not allowed to be set free until he has reached puberty. The young person whose affairs are managed cannot be set free with his property, even when he reaches puberty, until he manages his property."
38.6 Slaves Permitted to be Freed when a Slave Must be Freed by Obligation
8 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 missing. I asked her about it and she said that a wolf had eaten it. I became angry, as I am one of the children of Adam, and struck her on the face. As it happens, I have to set a slave free, so 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 asked, 'Who am I?' She replied, 'You are the Messenger of Allah.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'Free her.'"
[ash-Shafi'i in the Risala]
9 Malik related to me from Ibn Shihab from 'Ubaydullah ibn 'Abdullah ibn 'Utba ibn Mas'ud 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 free a slave who is a believer. If you think that she is a believer, I will set her free." 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." He asked, "Do you testify that Muhammad is the Messenger of Allah?" She said, "Yes." He went on, "Are you certain about the Rising after death?" She replied, "Yes." The Messenger of Allah, may Allah bless him and grant him peace, said, "Free her."
10 Malik related to me that he had heard that al-Maqburi said that Abu Hurayra was asked whether a man who had to free a slave could free an illegimate child to fulfil that obligation. Abu Hurayra said, "Yes, that will give satisfaction for him."
11 Malik related to me that he had heard that Fadala ibn 'Ubayd al-Ansari, one of the Companions of the Messenger of Allah, may Allah bless him and grant him peace, was asked whether it was permissible for a man who had to free a slave to free an illegitimate child. He said, "Yes, that will give satisfaction for him."
38.7 Slaves Not Permitted to be Freed when a Slave Must be Freed by Obligation
12 Malik related to me that he had heard that 'Abdullah ibn 'Umar was asked whether a slave could be bought for the specific purpose of fulfilling 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 by doing so whatever he buys is not completely a slave since 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, says in His Book, '...either as a favour then or by ransom.' (47:4) The favour is setting free."
Malik said, "As for obligations of freeing slaves which Allah has mentioned in the Book, one only frees a believing slave for them."
Malik said, "It is like that when feeding poor people for kaffara. One must only feed Muslims and one does not feed anyone outside of the deen of Islam."
38.8 Freeing the Living for the Dead
13 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 asked al-Qasim ibn Muhammad, 'Will it help her if I free a slave for her?' Al-Qasim replied, 'Sa'd ibn 'Ubada said to the Messenger of Allah, may Allah bless him and grant him peace, "My mother has 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, replied, "Yes."'"
14 Malik related to me that Yahya ibn Sa'id said, "'Abd ar-Rahman ibn Abi Bakr died in his sleep and 'A'isha, the wife of the Prophet, may Allah 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 the subject."
38.9 The Excellence of Freeing Slaves, Freeing Adulteresses and Illegitimate Children
15 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 the Messenger of Allah, may Allah bless him and grant him peace, 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."
[cf Bukhari 2382]
16 Malik related to me from Nafi' that 'Abdullah ibn 'Umar freed an illegitimate child and its mother.
38.10 The Right of the One who Sets Free to the Wala'
17 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 a 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 did not 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 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.'"
[cf Bukhari 2060]
18 Malik related to me from Nafi' from 'Abdullah ibn 'Umar that 'A'isha, Umm al-Muminin, wanted to buy a slave-girl and set her free. Her people said, "We will sell her to you provided that her wala' is ours." She mentioned that to the Messenger of Allah, may Allah bless him and grant him peace, and he said, "Do not let that stop you for the wala' only belongs to the one who sets free."
[cf Bukhari 2061]
19 Malik related to me from Yahya ibn Sa'id 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 one lump sum and set you free, I will do it." Barira mentioned that to her masters and they said, "No, not unless your wala' is ours." Yahya ibn Sa'id added that 'Amra bint 'Abd ar-Rahman claimed that 'A'isha mentioned that to the Messenger of Allah, may Allah bless him and grant him peace, and the Messenger of Allah, may Allah bless him and grant him peace, said, "Buy her and set her free. The wala' only belongs to the one who sets free."
[cf Bukhari 2425]
20 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'.
[cf Bukhari 2398; also in Muslim]
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, it 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'. And so it was permitted to the master to allow such a condition and to give him permission to give the wala' to whomever he liked, then it would be a gift.
38.11 Slaves Attracting the Wala' when Set Free
21 Malik related to me from Rabi'a 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 presented 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 Sa'id ibn al-Musayyab was asked who had the wala' of the children whom a slave had by a free woman. Sa'id 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, "Similarly in the case of a child of a woman who is a mawla who has been divorced by li'an, 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 and pay his blood-money - and his father is punished with the hadd punishment."
Malik said, "It is the same for a free-born woman divorced by li'an. If the husband who curses her by li'an 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 li'an 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 parentage 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 slave's father 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, narried to a slave, who was set free while she was pregnant 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 him 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."
38.12 The Inheritance of the Wala'
22 Malik related to me from 'Abdullah ibn Abi Bakr ibn Muhammad ibn 'Amr 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 had died leaving three sons, two by one wife and one by another wife. One of the two with the same mother died and left property and mawali. His full brother inherited his property and the wala' of his mawali. Then he 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 the wala' of the mawali." His brother said, "It is not like that. You obtain the property. As for the wala' of the mawali, that is not the case. Do you think that had it been my first brother who died today, I would not have inherited from him?" They argued and went to 'Uthman ibn 'Affan. He gave a judgement that the brother had the wala' of the mawali.
23 Malik related to me from 'Abdullah ibn Abi Bakr ibn Hazm that his father told him that he was sitting with Aban ibn 'Uthman when an argument was brought to him between some people from the Juhayna tribe and some people from the Banu al-Harith ibn al-Khazraj. A woman of the Juhayna tribe was married to a man from the Banu al-Harith ibn al-Khazraj called Ibrahim ibn Kulayb. She died and left property and mawali and her son and husband inherited from her. Then her son died and his heirs said, "We have the wala' of the mawali. Her son obtained that." Those of the Juhayna said, "That is not the case. They are the mawali of our female associate. When her child dies, we have their wala' and we inherit it." Aban ibn 'Uthman gave a judgement that the people of the Juhayna tribe did indeed have the wala' of the mawali.
24 Malik related to me that he had heard that Sa'id ibn al-Musayyab spoke about a man who died and left three sons and left mawali whom he had freed. Then two of his sons died leaving children. He said, "The third remaining son inherits the mawali. When he dies, his children and his brothers' children share equally in the wala' of the mawali."
38.13 The Inheritance of Slaves Set Free and the Wala' of Jews and Christians who Set Slaves Free
25 Malik related to me that he had asked Ibn Shihab about a slave who was released. He said, "His 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', 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 was set free before being sold, the wala' of the freed slave went to the Muslims. If the Jew or Christian became Muslim later, the wala' still did not revert to him."
He said, "However, if a Jew or Christian frees a slave of their own religion, and then the freed person becomes Muslim before the Jew or Christian who set him free becomes Muslim and then the one who freed him becomes a Muslim, his wala' reverts to him because the wala' was confirmed for him on the day he set him free."
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 set him free became Muslim. If the freed person was already Muslim when he was set free, 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 slaves goes to the Muslim community.
