Chapter: Emancipation of a Shared Slave, Purchasing a Relative, and Emancipation During Illness

(1) The statement: “And give them a contract, etc.”: It is stated in Al-Hidayah: This command is not obligatory by consensus among jurists; rather, it is a recommendation, which is the correct view. Interpreting it as permission nullifies the condition, i.e., His saying: if you know there is good in them [An-Nur: 33], because the contract of emancipation is permissible without it. However, the recommendation is tied to it. The meaning of “good” mentioned in His saying: if you know there is good in them [An-Nur: 33], as has been said, is that they will not harm Muslims after emancipation. If they would harm them, it is better not to grant the contract, though it would be valid if the master did so.

(1) The statement: “When Abdul Rahman reaches maturity, if he desires what you desired, he may emancipate; otherwise, he guarantees you”: This means if a slave is shared between two men and one emancipates his share, Abu Yusuf and Muhammad said: The slave is entirely free, and if the emancipator is solvent, he guarantees the value of the partner’s share; if insolvent, the slave works. They said: He only has the guarantee with solvency or work with insolvency, and the emancipator does not revert to the slave, with patronage belonging to the emancipator. Shafi‘i said: If the emancipator is solvent, he guarantees his partner, and the emancipation is not partial. If insolvent, the emancipation is partial, and he does not uphold work; instead, the other partner uses him one day and leaves him the next forever, meaning Shafi‘i’s view on the solvent aligns with theirs. For the insolvent, the silent partner’s share remains his, to be sold or gifted. Abu Hanifah said: If a master emancipates part of his slave, that portion is freed, and he works for the remaining value for his master. If the slave is shared between two partners and one emancipates his share, it is freed. If solvent, the partner has the choice: he may emancipate, guarantee the emancipator the value of his share, or make the slave work. If he guarantees, the emancipator reverts to the slave, and patronage is for the emancipator. If he emancipates or makes him work, patronage is shared. If the emancipator is insolvent,.Concurrent Assistant: the partner has the choice: he may emancipate or make the slave work, and patronage is shared in both cases, i.e., emancipation or work. This is based on two principles: one, whether emancipation can be partial or not; two, whether the emancipator’s solvency prevents work. For Abu Hanifah, it does not prevent work; for the two, it does. In summary: emancipation is partial in all cases for Abu Hanifah, not partial in any case for his two companions, and for Shafi‘i, it is partial in some cases but not others. The correct view is the Imam’s, as stated in Qahastani from Al-Mudmarat, and Qasim confirmed its correctness from the authorities of verification, supported in Fath Al-Qadir by meaning and narration, including the hadith in the two Sahihs: “Whoever emancipates his share in a slave, if he has wealth to cover the slave’s value, he is valued justly, gives his partners their shares, and the slave is freed; otherwise, only what was emancipated is freed,” indicating partial emancipation, which supports Abu Hanifah. Nawawi said the hadiths align with Shafi‘i. I say: How, when Shafi‘i took the hadith of guarantee and ignored the hadith of work despite its authenticity? Fairness, in terms of hadith, is what Tahawi said, choosing the view of the two companions. I say: Abu Hanifah’s position is strong in jurisprudence, as emancipation entails the guarantee and work mentioned in the hadiths. Bukhari agreed with Abu Hanifah from start to finish. Among Abu Hanifah’s proofs is this narration of Umar narrated by Tahawi, who said: In this narration, Abdul Rahman, after reaching maturity, could emancipate his share of the slave already partially emancipated by his mother and brother. Abu Hanifah (may Allah be pleased with him) said: Since he could emancipate by paying it without compensation, he could take the slave by paying the value of what remained, so it is freed by paying it. Since the non-emancipator could emancipate his share, the emancipating partner who guaranteed reverts to the guaranteed amount from the slave, so he must make the slave work for the value of what his partner had, and for what his partner could make him work. The hadith of work will be verified later in this chapter. In Arf Ash-Shadhi, it is said: Our Imam Abu Hanifah has two authentic hadiths, one in Abdul Razzaq’s Musannaf and the other in Ahmad’s Musnad, with trustworthy narrators, and one was authenticated by a preserver among preservers. This is gathered from Arf Ash-Shadhi, Al-Hidayah, commentaries of Al-Kanz, Ad-Durr Al-Mukhtar, Radd Al-Muhtar, and Sharh Ma‘ani Al-Athar.

(2) The statement: “Then made to work, etc.”: Work, for us, means hiring him out and taking half his value from the wage. Some Shafi‘is said work means he serves his master one day and is free the next, forever. I say: This contradicts “valued justly, etc.,” and we have this hadith, so work is established. Ibn Hazm said thirty Companions confirmed work, and nothing in their narrations contradicts our position; rather, it supports what we say, as it says in a hadith: “If solvent, he is valued, then freed,” and “then” indicates delay, meaning he is freed afterward, either by emancipation or work. Another hadith says: “He gave his partners their shares and freed,” with “and” not negating sequence or delay, so we interpret it for reconciliation. However, the apparent hadith of work supports the two companions that the slave is not made to work for the remaining share if the emancipator is solvent, meaning capable of paying the other’s share value, as the hadith’s wording indicates: “If he has wealth to cover his value.” But its support for them depends on considering the opposite implication, i.e., “If he has no wealth, valued justly, then made to work,” implying no work if he has wealth. You know our three scholars did not accept the opposite implication, so how can they establish their aim with it? This is gathered from Al-Mirqat, Arf Ash-Shadhi, commentaries of Al-Kanz, and Al-Kawkab Ad-Durri.

(3) The statement: “Ordered him to work for the two-thirds, so work is established”: The hadith of lots, for us, applies to the early days of Islam before lots were abrogated by the prohibition of gambling, so that ruling was lifted. This is taken from Badhl Al-Majhud. Abu Hanifah said: Each one’s share is freed, and he works for the rest, with his evidence being Abdul Razzaq’s hadith. This is gathered from Al-Mirqat.

(1) The statement: “Whoever owns a close relative who is a mahram, he is free”: For us, if a man owns a close mahram relative, they are freed upon ownership without initiating emancipation. For Shafi‘i, they are not freed except in parental relations, like parents and children. For Malik, they are freed in sibling relations only. We have this hadith, and similar narrations from Umar and Ibn Mas‘ud, and many Successors. Non-mahram relatives, like cousins, or mahram non-relatives, like those by marriage or nursing, are not freed by consensus. This is taken from commentaries of Al-Kanz.

(2) The statement: “And frees him”: Some literalists inferred that a father is not freed upon his child’s ownership, as otherwise, emancipation would not follow purchase. They interpret the “fa” in “frees him” as sequential. The majority hold that he is freed upon ownership without initiating emancipation, and “frees him” means freeing by purchase, not by initiating emancipation. The sequence is in terms of ruling, not initiation. Thus, the “fa” in “frees him” indicates causality, meaning he is freed due to purchase, not requiring “I freed you” after purchase, but freed by the purchase itself. This is gathered from Al-Mirqat.

(1) The statement: “A slave promised freedom is not sold, etc.”: For our Hanafi scholars, a slave promised freedom is of two types: absolute and conditional. The absolute is divided into two: one, where emancipation is tied to death without specifying time or condition, e.g., “If I die, you are free”; two, tied to death with a condition likely to occur, e.g., “If I die within a hundred years,” when he is eighty, which, though conditional, is effectively absolute, as he likely dies before that, equivalent to “If I die” without a condition. The ruling for an absolute promised slave is that he is not sold, gifted, employed, or hired out; a female promised slave may be married. Upon the master’s death, he is freed from one-third of his wealth, and works for two-thirds of his value if the master is poor with no other wealth, or for his entire value if indebted with a debt consuming all his wealth. A conditional promised slave differs from these two absolute forms, i.e., emancipation is tied to death with an unlikely condition, e.g., “If I die in this illness, he is free.” If the master dies with that condition, he is freed, like an absolute promised slave, from one-third, as the ruling of promised freedom applies at the last moment of life when that condition is met, making him absolute, so he cannot be sold. If he recovers from that illness and dies, he is not freed, as the condition lapsed. Scholars differed on whether a promised slave can be sold. Abu Hanifah, Malik, and a group from Kufa said the master cannot sell his promised slave. Shafi‘i said it is permissible to transfer ownership by sale, gift, or otherwise, based on Jabir’s narration that a man promised his slave freedom, then needed money, so the Prophet (ﷺ) took him and said: “Who will buy him from me?” Nu‘aym ibn Abdullah bought him for such-and-such and handed him over. Ahmad said the same, and Ahmad said sale is only permissible if the master has a debt. We have the hadith mentioned in the book. If you say: It is a rare hadith. I say: It is a well-known hadith used by Karkhi, Tahawi, Razi, and other imams as evidence. Tirmidhi narrated Jabir’s hadith, saying: “Some scholars among the Prophet’s Companions and others acted on this hadith, seeing no issue with selling a promised slave,” which is the view of Shafi‘i, Ahmad, and Ishaq. Some scholars among the Companions disliked selling a promised slave, which is the view of Sufyan Ath-Thawri, Malik, and Al-Awza‘i. Abu Al-Walid Al-Baji narrated that Umar (may Allah be pleased with him) prohibited the sale of a promised female slave in the presence of the best generations, a consensus among them that selling a promised slave is not permissible. What Shafi‘i narrated is a specific incident, and a verbal text is not contradicted by an action. Also, a specific incident cannot be used as evidence, as it may involve a conditionally promised slave. Further responses to Jabir’s hadith include: First, Ibn Battal said it is not evidence, as the hadith states the master had a debt, so the sale was for that. Second, it is a specific case open to interpretation, and some Malikis interpreted it as the master having no other wealth, so his action was voided. Third, it may involve selling his service, as hiring is called sale in Yemen’s dialect, as it involves selling service, supported by Ibn Hazm’s narration from Abu Ja‘far Muhammad ibn Ali, mursal from the Prophet (ﷺ), that he sold a promised slave’s service. Fourth, the master who sold the promised slave was foolish, so the Prophet (ﷺ) sold him himself, and selling a promised slave, for those who permit it, does not require the imam’s sale. Fifth, it may have been sold when a free indebted person could be sold, as narrated that he sold a free man for his debt, then abrogated by His saying: And if he is in hardship, then [grant] a respite until ease [Al-Baqarah: 280]. This is gathered from Umdat Al-Qari, Umdat Ar-Ri‘ayah, commentary of Al-Wiqayah, Al-Mirqat, and commentaries of Al-Kanz.

(1) The statement: “If a man’s slave woman bears, etc.”: For this reason, it is stated in the commentary of Al-Wiqayah and Al-Mirqat: A slave woman who bears a child from her master or husband, if owned by him, becomes an umm walad. Her ruling is like a promised slave, except she is freed upon the master’s death from all his wealth, and she does not work for his debt. This is the view of the majority of Companions, Successors, and jurists.

(1) The statement: “He prohibited us, and we stopped”: The four imams agreed that ummahat al-awlad are not sold, which is the view of the early and later jurists of the cities. Ibn Qudamah narrated a consensus of the Companions on this. The narrations from Ali, Ibn Abbas, and Ibn Az-Zubayr permitting it do not undermine this, as their retraction from opposition is narrated, as Ibn Ruslan stated in Sharh As-Sunan. Abdul Razzaq narrated from Ali with an authentic chain that he retracted to the majority Companions’ view. This is taken from Rahmat Al-Ummah and Nayl Al-Awtar. Shamni said it is possible the Prophet (ﷺ) was unaware of their sale, and it is only evidence if he knew and approved. It may have been early, then the Prophet (ﷺ) prohibited it, and Abu Bakr was unaware due to his short caliphate and preoccupation with Muslim affairs. Umar prohibited it when he learned of the Prophet’s prohibition. Thus, in Al-Mirqat.

(2) The statement: “He has nothing”: The issues of this type are based on two principles: one, everything included in the customary meaning of sale is part of the sold item, even if not explicitly mentioned; two, what is permanently attached to the sold item, meant to remain, is included as subsidiary, but what is meant to be separated by human action is not permanently attached and not included as subsidiary. This is gathered from Al-Inayah and Ad-Durr Al-Mukhtar.

(1) The statement: “She freed me and stipulated”: In detail, if a master frees a slave on condition of his service—e.g., serving the master or another for a year—and he accepts, he is freed immediately, as emancipation on a condition requires acceptance in the session, not the existence of the accepted, like other contracts. He serves from that moment for the specified period, whether a year or less or more. This is our view and Shafi‘i’s. If the master says: “I freed you on condition you serve me forever” or unspecified, and he accepts, he is freed immediately, and owes the master the value of his slavery, per the two Shaykhs and one of Shafi‘i’s views. If he or the master dies before service, the value is still owed, taken from him for the master’s heirs or from the slave’s estate for the master. For Muhammad and Zufar, and another of Shafi‘i’s views, the value of his service is owed, which we adopt, per Hawi. This is gathered from Ad-Durr Al-Mukhtar, Radd Al-Muhtar, Fath Al-Qadir, and Al-Mirqat.

(2) The statement: “A contracted slave, etc.”: It is stated in At-Takmilah: Discussion of the contract has several aspects: first, its linguistic meaning; second, its legal meaning; third, its pillar; fourth, its condition of validity; fifth, its evidence; sixth, its ruling; seventh, its description; eighth, its reality; ninth, its cause; tenth, its rulings. Linguistically, it derives from “kataba,” meaning to gather or join, and writing is called “kitabah” for joining letters. The contracted slave is the object of “kataba,” and the master is “mukaatib” with a kasra on the ta’. Legally, it is a specific joining, combining the slave’s freedom in wealth with freedom of action immediately. Its pillar is offer and acceptance, linked together. Its condition of validity is the existence of slavery and a known specified amount. Its evidence from the Quran is: “A contracted slave, etc.,” and “Whoever contracts his slave for a hundred ounces, pays it except ten ounces, he is a slave.” Its description is that it is a recommended contract for both the righteous and unrighteous. Its ruling is the removal of restriction and establishment of freedom. Its ruling for the master is the right to demand the agreed payment. Its cause is the master’s slavery in exchange for the contract’s payment immediately and the reward of emancipation later, and the slave’s desire for freedom. Its rulings are immediate and delayed. Thus, in Al-Hidayah. In Rahmat Al-Ummah, it is said: They agreed that contracting a slave with earnings is recommended, even obligatory per Ahmad’s narration if the slave requests it for his value or more. Its description is that the master contracts his slave for a specific amount, which the slave works to pay. For a slave without earnings, Abu Hanifah, Malik, and Shafi‘i said contracting is not disliked; Ahmad has two narrations, one disliking it, the other not. Contracting a non-contracted female slave is disliked by consensus.

(3) The statement: “A slave as long as a dirham remains”: In Al-Hidayah, it is said: He is not freed until paying the entire amount, per his saying: “Whoever was contracted for a hundred dinars and paid except ten dinars, he is a slave,” and “A contracted slave as long as a dirham remains.” The Companions differed, and we adopt Zayd’s view (may Allah be pleased with him), as it is supported by hadiths. In Nayl Al-Awtar, it is said: Abu Hanifah and Shafi‘i said he has no rights of free people, remaining a slave until fully freed, as narrated by Al-Hafiz in Al-Fath from the majority, and in Al-Bahr from Umar, Ibn Abbas, Zayd ibn Thabit, Aisha, Umm Salamah, Al-Hasan Al-Basri, Sa‘id ibn Al-Musayyib, Az-Zuhri, Ath-Thawri, Al-Utrah, Abu Hanifah, Shafi‘i, and Malik, that a contracted slave is not freed until he pays in full, even if he paid most, based on these hadiths, which they prioritized. The apparent hadith of Umm Salamah: “If one of you has a contracted slave with enough to pay, let her veil from him,” indicates the slave of a woman is her mahram, as Shafi‘i said, contra Abu Hanifah. Qadi Khan said: A slave looking at his free mistress with no kinship is like a foreign man. The interpretation of Umm Salamah’s hadith is that veiling means proper veiling, like speaking or looking at hands and face, as she veils from other foreigners, as mentioned in Al-Madarak in interpreting His saying: Or what their right hands possess [An-Nur: 31]. Sa‘id ibn Al-Musayyib said: “Let not Surah An-Nur deceive you, as it refers to female slaves, not males.” Thus, in Badhl Al-Majhud.

(1) The statement: “Will it benefit her if I emancipate on her behalf? He said: Yes”: Because emancipation is among the best forms of charity, and all types of charity, as well as financial and physical worship, their reward reaches the deceased, prompting forgiveness and raising their ranks. Narrations and reports confirm this, as detailed by As-Suyuti in Sharh As-Sudur on the states of the dead and graves, and others elsewhere. Among the best reports on emancipation for the deceased is what An-Nasa’i narrated from Wathilah, who said: We were with the Prophet (ﷺ) in the Tabuk expedition and said: “Our companion died.” The Messenger of Allah (ﷺ) said: “Free a slave on his behalf, and Allah will free for every limb of his a limb from him from the Fire.” Thus, in At-Ta‘liq Al-Mumajjad.

(2) The statement: “Aisha freed many slaves on his behalf”: Muhammad said in Al-Muwatta: “We adopt this; there is no issue with emancipating for the deceased. If he bequeathed it, patronage is his; if he did not, patronage is for the emancipator, and the reward reaches the deceased.” In At-Ta‘liq Al-Mumajjad, it is said: There is no doubt the reward reaches the deceased if a living person emancipates for him and directs the reward to him, even without a bequest. If the emancipation or charity is obligatory on the deceased and he bequeathed it, the executor must fulfill it from one-third of his estate, and his obligation is cleared. If he did not bequeath and the executor voluntarily fulfills what was obligatory, his obligation is cleared, by Allah’s grace and favor, if He wills.