Malik related to me that he heard that Hadrat Umm Salama, the wife of
the Noble Prophet (blessings and peace of Allah be upon him) made a
settlement with her mukatab for an agreed amount of gold and silver.
Malik said, "The generally agreed on way of doing things
among us in the case of a mukatab who is shared by two partners, is
that one of them cannot make a settlement with him for an agreed price
according to his portion without the consent of his partner. That is
because the slave and his property are owned by both of them, and so
one of them is not permitted to take any of the property except with
the consent of his partner. If one of them settled with the mukatab
and his partner did not, and he took the agreed price, and then the
mukatab died while he had property or was unable to pay, the one who
settled would not have anything of the mukatab's property and he could
not return that for which he made settlement so that his right to the
slave's person would return to him. However, when someone settles with
a mukatab with the permission of his partner and then the mukatab is
unable to pay, it is preferable that the one who broke with him return
what he has taken from the mukatab for the severance and he can have
back his portion of the mukatab. He can do that. If the mukatab dies
and leaves property, the partner who has kept hold of the kitaba is
paid in full the amount of the kitaba which remains to him against the
mukatab from the mukatab's property. Then what remains of property of
the mukatab is between the partner who broke with him and his partner,
according to their shares in the mukatab. If one of the partners
breaks off with him and the other keeps the kitaba, and the mukatab is
unable to pay, it is said to the partner who settled with him, 'If you
wish to give your partner half of what you took so the slave is
divided between you, then do so. If you refuse, then all of the slave
belongs to the one who held on to possession of the slave.' "
Malik spoke about a mukatab who was shared between two men and one of
them made a settlement with him with the permission of his partner.
Then the one who retained possession of the slave demanded the like of
that for which his partner had settled or more than that and the
mukatab could not pay it. He said, "The mukatab is shared between them
because the man has only demanded what is owed to him. If he demands
less than what the one who settled with him took and the mukatab can
not manage that, and the one who settled with him prefers to return to
his partner half of what he took so the slave is divided in halves
between them, he can do that. If he refuses then all of the slave
belongs to the one who did not settle with him. If the mukatab dies
and leaves property, and the one who settled with him prefers to
return to his companion half of what he has taken so the inheritance
is divided between them, he can do that. If the one who has kept the
kitaba takes the like of what the one who has settled with him took,
or more, the inheritance is between them according to their shares in
the slave because he is only taking his right."
Malik spoke
about a mukatab who was shared between two men and one of them made a
settlement with him for half of what was due to him with the
permission of his partner, and then the one who retained possession of
the slave took less than what his partner settled with him for and the
mukatab was unable to pay. He said, "If the one who made a settlement
with the slave prefers to return half of what he was awarded to his
partner, the slave is divided between them. If he refuses to return
it, the one who retained possession has the portion of the share for
which his partner made a settlement with the mukatab."
Malik
said, "The explanation of that is that the slave is divided in two
halves between them. They write him a kitaba together and then one of
them makes a settlement with the mukatab for half his due with the
permission of his partner. That is a fourth of all the slave. Then the
mukatab is unable to continue, so it is said to the one who settled
with him, 'If you wish, return to your partner half of what you were
awarded and the slave is divided equally between you.' If he refuses,
the one who held to the kitaba takes in full the fourth of his partner
for which he made settlement with the mukatab. He had half the slave,
so that now gives him three-fourths of the slave. The one who broke
off has a fourth of the slave because he refused to return the
equivalent of the fourth share for which he settled."
Malik
spoke about a mukatab whose master made a settlement with him and set
him free and what remained of his severance was written against him as
debt, then the mukatab died and people had debts against him. He said,
"His master does not share with the creditors because of what he is
owed from the severance. The creditors begin first."
Malik
said, "A mukatab cannot break with his master when he owes debts to
people. He would be set free and have nothing because the people who
hold the debts are more entitled to his property than his master. That
is not permitted for him."
Malik said, "According to the way
things are done among us, there is no harm if a man gives a kitaba to
his slave and settles with him for gold and reduces what he is owed of
the kitaba provided that only the gold is paid immediately. Whoever
disapproves of that does so because he puts it in the category of a
debt which a man has against another man for a set term. He gives him
a reduction and he pays it immediately. This is not like that debt.
The breaking of the mukatab with his master is dependent on his giving
money to speed up the setting free. Inheritance, testimony and the
hudud are obliged for him and the inviolability of being set free is
established for him. He is not buying dirhams for dirhams or gold for
gold. Rather it is like a man who having said to his slave, 'Bring me
such-and-such an amount of dinars and you are free', then reduces that
for him, saying, 'If you bring me less than that, you are free.' That
is not a fixed debt. Had it been a fixed debt, the master would have
shared with the creditors of the mukatab when he died or went
bankrupt. His claim on the property of the mukatab would join theirs."
Urdu Translation
امام مالک کو یہ روایت پہنچی کہ حضرت اُمّ المؤمنین ام سلمہ رضی اللہ تعالیٰ عنہا نبی کریم صلی اللہ تعالیٰ علیہ وآلہ وسلم کی زوجہ مطہرہ اپنے مکاتبوں سے سونے چاندی میں مصالحت کر لیا کرتی تھیں۔ امام مالک فرماتے ہیں: ہمارے ہاں متفقہ بات یہ ہے کہ اگر مکاتب دو شریکوں کے درمیان ہو تو ایک شریک کے لیے جائز نہیں کہ دوسرے کی اجازت کے بغیر مصالحت کرے۔
Malik related to me that he heard that Hadrat Umm Salama, the wife of
the Noble Prophet (blessings and peace of Allah be upon him) made a
settlement with her mukatab for an agreed amount of gold and silver.
Malik said, "The generally agreed on way of doing things
among us in the case of a mukatab who is shared by two partners, is
that one of them cannot make a settlement with him for an agreed price
according to his portion without the consent of his partner. That is
because the slave and his property are owned by both of them, and so
one of them is not permitted to take any of the property except with
the consent of his partner. If one of them settled with the mukatab
and his partner did not, and he took the agreed price, and then the
mukatab died while he had property or was unable to pay, the one who
settled would not have anything of the mukatab's property and he could
not return that for which he made settlement so that his right to the
slave's person would return to him. However, when someone settles with
a mukatab with the permission of his partner and then the mukatab is
unable to pay, it is preferable that the one who broke with him return
what he has taken from the mukatab for the severance and he can have
back his portion of the mukatab. He can do that. If the mukatab dies
and leaves property, the partner who has kept hold of the kitaba is
paid in full the amount of the kitaba which remains to him against the
mukatab from the mukatab's property. Then what remains of property of
the mukatab is between the partner who broke with him and his partner,
according to their shares in the mukatab. If one of the partners
breaks off with him and the other keeps the kitaba, and the mukatab is
unable to pay, it is said to the partner who settled with him, 'If you
wish to give your partner half of what you took so the slave is
divided between you, then do so. If you refuse, then all of the slave
belongs to the one who held on to possession of the slave.' "
Malik spoke about a mukatab who was shared between two men and one of
them made a settlement with him with the permission of his partner.
Then the one who retained possession of the slave demanded the like of
that for which his partner had settled or more than that and the
mukatab could not pay it. He said, "The mukatab is shared between them
because the man has only demanded what is owed to him. If he demands
less than what the one who settled with him took and the mukatab can
not manage that, and the one who settled with him prefers to return to
his partner half of what he took so the slave is divided in halves
between them, he can do that. If he refuses then all of the slave
belongs to the one who did not settle with him. If the mukatab dies
and leaves property, and the one who settled with him prefers to
return to his companion half of what he has taken so the inheritance
is divided between them, he can do that. If the one who has kept the
kitaba takes the like of what the one who has settled with him took,
or more, the inheritance is between them according to their shares in
the slave because he is only taking his right."
Malik spoke
about a mukatab who was shared between two men and one of them made a
settlement with him for half of what was due to him with the
permission of his partner, and then the one who retained possession of
the slave took less than what his partner settled with him for and the
mukatab was unable to pay. He said, "If the one who made a settlement
with the slave prefers to return half of what he was awarded to his
partner, the slave is divided between them. If he refuses to return
it, the one who retained possession has the portion of the share for
which his partner made a settlement with the mukatab."
Malik
said, "The explanation of that is that the slave is divided in two
halves between them. They write him a kitaba together and then one of
them makes a settlement with the mukatab for half his due with the
permission of his partner. That is a fourth of all the slave. Then the
mukatab is unable to continue, so it is said to the one who settled
with him, 'If you wish, return to your partner half of what you were
awarded and the slave is divided equally between you.' If he refuses,
the one who held to the kitaba takes in full the fourth of his partner
for which he made settlement with the mukatab. He had half the slave,
so that now gives him three-fourths of the slave. The one who broke
off has a fourth of the slave because he refused to return the
equivalent of the fourth share for which he settled."
Malik
spoke about a mukatab whose master made a settlement with him and set
him free and what remained of his severance was written against him as
debt, then the mukatab died and people had debts against him. He said,
"His master does not share with the creditors because of what he is
owed from the severance. The creditors begin first."
Malik
said, "A mukatab cannot break with his master when he owes debts to
people. He would be set free and have nothing because the people who
hold the debts are more entitled to his property than his master. That
is not permitted for him."
Malik said, "According to the way
things are done among us, there is no harm if a man gives a kitaba to
his slave and settles with him for gold and reduces what he is owed of
the kitaba provided that only the gold is paid immediately. Whoever
disapproves of that does so because he puts it in the category of a
debt which a man has against another man for a set term. He gives him
a reduction and he pays it immediately. This is not like that debt.
The breaking of the mukatab with his master is dependent on his giving
money to speed up the setting free. Inheritance, testimony and the
hudud are obliged for him and the inviolability of being set free is
established for him. He is not buying dirhams for dirhams or gold for
gold. Rather it is like a man who having said to his slave, 'Bring me
such-and-such an amount of dinars and you are free', then reduces that
for him, saying, 'If you bring me less than that, you are free.' That
is not a fixed debt. Had it been a fixed debt, the master would have
shared with the creditors of the mukatab when he died or went
bankrupt. His claim on the property of the mukatab would join theirs."
امام مالک کو یہ روایت پہنچی کہ حضرت اُمّ المؤمنین ام سلمہ رضی اللہ تعالیٰ عنہا نبی کریم صلی اللہ تعالیٰ علیہ وآلہ وسلم کی زوجہ مطہرہ اپنے مکاتبوں سے سونے چاندی میں مصالحت کر لیا کرتی تھیں۔ امام مالک فرماتے ہیں: ہمارے ہاں متفقہ بات یہ ہے کہ اگر مکاتب دو شریکوں کے درمیان ہو تو ایک شریک کے لیے جائز نہیں کہ دوسرے کی اجازت کے بغیر مصالحت کرے۔
