كتاب 40
40
Book 40
(40)
Chapter 40
(40)
باب 40
Muwatta Malik 1607
Yahya related to me that Malik said, "What is done in our
community in the case of a man who makes his slave-girl a mudabbara
and she gives birth to children after that, and then the slave-girl
dies before the one who gave her a tadbir is that her children are in
her position. The conditions which were confirmed for her are
confirmed for them. The death of their mother does not harm them. If
the one who made her mudabbara dies, they are free if their value is
less than one third of his total property."
Malik said, "For
every mother by birth as opposed to mother by suckling, her children
are in her position. If she is free and she gives birth after she is
free, her children are free. If she is a mudabbara or mukataba, or
freed after a number of years in service, or part of her is free or
pledged or she is an umm walad, each of her children are in the same
position as their mother. They are set free when she is set free and
they are slaves when she is a slave."
Malik said about the
mudabbara given a tadbir while she was pregnant, "Her children are in
her position. That is also the position of a man who frees his slave-
girl while she is pregnant and does not know that she is pregnant."
Malik said, "The sunna about such women is that their
children follow them and are set free by their being set free."
Malik said, "It is the same as if a man had bought a slave-girl
while she was pregnant. The slave-girl and what is in her womb belong
to the one who bought her whether or not the buyer stipulates that."
Malik continued, "It is not halal for the seller to make an
exception about what is in her womb because that is an uncertain
transaction. It reduces her price and he does not know if that will
reach him or not. That is as if one sold the foetus in the womb of the
mother. That is not halal because it is an uncertain transaction ."
Malik said about the mukatab or mudabbar who bought a slave-
girl and had intercourse with her and she became pregnant by him and
gives birth, "The children of both of them by a slave-girl are in his
position. They are set free when he is set free and they are slaves
when he is a slave."
Malik said, "When he is set free, the
umm walad is part of his property which is surrendered to him when he
is set free."
| Reference | : Muwatta Malik 1607 |
| In-book reference | : Book 40, Hadith 35785 |
| USC-MSA web (English) reference | : Book 7, Hadith 1607 |
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