Judgements

Malik said, “This procedure pertains to property cases in particular. It does not occur in any of the hadd-punishments, nor in marriage, divorce, freeing slaves, theft or slander.

If some one says, ‘Freeing slaves comes under property,’ he has erred. It is not as he said. Had it been as he said, a slave could take an oath with one witness, if he could find one, that his master had freed him.

‘However, when a slave lays claim to a piece of property, he can take an oath with one witness and demand his right as the freeman demands his right.’ Malik said, ‘The sunna with us is that when a slave brings somebody who witnesses that he has been set free, his master is made to take an oath that he has not freed him, and the slave’s claim is dropped.’

Malik said, ‘The sunna about divorce is also like that with us. When a woman brings somebody who witnesses that her husband has divorced her, the husband is made to take an oath that he has not divorced her. If he takes the oath, the divorce does not proceed.

‘ Malik said, ‘There is only one sunna of bringing a witness in cases of divorce and freeing a slave. The right to make an oath only belongs to the husband of the woman, and the master of the slave. Freeing is a hadd matter, and the testimony of women is not permitted in it because when a slave is freed, his inviolability is affirmed and the hadd punishments are applied for and against him.

If he commits fornication and he is a muhsan, he is stoned. If he kills a slave, he is killed for it. Inheritance is established for him, between him and whoever inherits from him. If somebody disputes this, arguing that if a man frees his slave and then a man comes to demand from the master of the slave payment of a debt, and a man and two women testify to his right, that establishes the right against the master of the slave so that his freeing him is cancelled if he only has the slave as property, inferring by this case that the testimony of women is permitted in cases of setting free.

The case is not as he suggests (i.e. it is a case of property not freeing). It is like a man who frees his slave, and then the claimant of a debt comes to the master and takes an oath with one witness, demanding his right. By that, the freeing of the slave would be cancelled. Or else a man comes who has frequent dealings and transactions with the master of the slave.

He claims that he is owed money by the master of the slave. Someone says to the master of the slave, ‘Take an oath that you don’t owe what he claims’. If he draws back and refuses to take an oath, the one making the claim takes an oath and his right against the master of the slave is confirmed. That would cancel the freeing of the slave if it is confirmed that property is owed by the master.’

Malik said, ‘It is the same case with a man who marries a slave-girl and then the master of the slave-girl comes to the man who has married her and claims, ‘You and so-and-so have bought my slave-girl from me for such an amount of dinars. The husband of the slave-girl denies that. The master of the slave-girl brings a man and two women and they testify to what he has said.

The sale is confirmed and his claim is considered true. So the slave-girl is haram for her husband and they have to separate, even though the testimony of women is not accepted in divorce.’

Malik said, ‘It is also the same case with a man who accuses a free man, so the hadd falls on him. A man and two women come and testify that the one accused is a slave. That would remove the hadd from the accused after it had befallen him, even though the testimony of women is not accepted in accusations involving hadd punishments.’

Malik said, ‘Another similar case in which judgement appears to go against the precedent of the sunna is that two women testify that a child is born alive and so it is necessary for him to inherit if a situation arises where he is entitled to inherit, and the child’s property goes to those who inherit from him, if he dies, and it is not necessary that the two women witnesses should be accompanied by a man or an oath even though it may involve vast properties of gold, silver, live-stock, gardens and slaves and other properties.

However, had two women testified to one dirham or more or less than that in a property case, their testimony would not affect anything and would not be permitted unless there was a witness or an oath with them.’

Malik said, ‘There are people who say that an oath is not acceptable with only one witness and they argue by the word of Allah the Blessed, the Exalted, and His word is the Truth, ‘And call in to witness two witnesses, men; or if the two be not men, then one man and two women, such witnesses as you approve of.’ (Sura 2 ayat 282).

Such people argue that if he does not bring one man and two women, he has no claim and he is not allowed to take an oath with one witness.’ Malik said, ‘Part of the proof against those who argue this, is to reply to them, ‘Do you think that if a man claimed property from a man, the one claimed from would not swear that the claim was false?’

If he swears, the claim against him is dropped. If he refuses to take an oath, the claimant is made to take an oath that his claim is true, and his right against his companion is established. There is no dispute about this with any of the people nor in any country. By what does he take this? In what place in the Book of Allah does he find it?

So if he confirms this, let him confirm the oath with one witness, even if it is not in the Book of Allah, the Mighty, the Majestic! It is enough that this is the precedent of the sunna. However, man wants to recognise the proper course of action and the location of the proof. In this there is a clarification for what is obscure about that, if Allah taala wills.’’’’”

I think that they should take an oath and take what remains after his debt.” Yahya said, “Malik said about Jamil ibn Abd ar-Rahman al-Muadhdin that he was present with Umar ibn Abd al-Aziz when he was judging between people. If a man came to him with a claim against a man, he examined whether or not there were frequent transactions and dealings between them.

If there were, the defendant could make an oath. If there was nothing of that nature he did not accept an oath from him.” Malik summed up, “What is done in our community is that if some one makes a claim against a man, it is examined. If there are frequent transactions and dealings between them, the defendant is made to take an oath.

If he takes an oath, the claim against him is dropped. If the defendant refuses to take an oath, and returns the oath to the claimant, the one claiming his right takes an oath and takes his due.”

The palm is not like the animal. Fruit is not like the foetus in its mother’s womb. Part of what clarifies that is also that it is the usage of people to have a man pawn the fruit of the palm apart from the palm. No one pawns the foetus in its mother’s womb whether of slaves or animals.’

Yahya said that he had heard Malik say, ‘The undisputed way of doing things in our community concerning pledges is that in cases where land or a house or an animal are known to have been destroyed whilst in the possession of the broker of the pledge, and the circumstances of the loss are known, the loss is against the pledger. There is no deduction made from what is due to the broker at all.

Any pledge which perishes in the possession of the broker and the circumstances of its loss are only known by his word, the loss is against the broker and he is liable for its value.

He is asked to describe whatever was destroyed and then he is made to take an oath about that description and what he loaned on security for it. ‘Then people of discernment evaluate the description. If the pledge was worth more than what the broker loaned, the pledger takes the extra. If the assessed value of the pledge is less than what he was loaned, the pledger is made to take an oath as to what the broker loaned and he does not have to pay the extra which the broker loaned above the assessed value of the pledge.

If the pledger refuses to take an oath, he has to give the broker the extra above the assessed value of the pledge. If the broker says that he doesn’t know the value of the pledge, the pledger is made to take an oath on the description of the pledge and that is his if he brings a matter which is not disapproved of.’

Malik said, ‘All this applies when the broker takes the pledge and does not put it in the hands of another.’ Yahya said that he heard Malik speak about two men who had a pledge between them. One of them undertook to sell his pledge, and the other one had asked him to wait a year for his due.

He said, ‘If it is possible to divide the pledge, and the due of the one who asked him to wait will not be decreased, half the pledge which is between them is sold for him and he is given his due. If it is feared that his right will be decreased, all the pledge is sold, and the one who undertook to sell his pledge is given his due from that.

If the one who asked him to wait for his due is pleased in himself, half of the price is paid to the pledger. If not, the pledgee is made to take an oath that he only asked him to wait so that he could transfer my pledge to me in its form.’ Then he is given his due immediately.’

Yahya said that he heard Malik say about a slave whose master had pledged him and the slave had property of his own, ‘The property of the slave is not part of the pledge unless the broker stipulates that.’

Yahya said that he heard Malik speak about someone who pledged goods as security for a loan, and they perished with the broker. The one who took out the loan confirmed its specification. They agreed on the amount of the loan, but challenged each other about the value of the pledge, the pledger saying that it had been worth twenty dinars, whilst the broker said that it had been worth only ten, and that the amount loaned on security was twenty dinars.

Malik said, ‘It is said to the one in whose hand the pledge is, ‘describe it.’ If he describes it he is made to take an oath on it and then the people of experience evaluate that description. If the value is more than what was loaned on security for it, it is said to the broker, ‘Return the rest of his due to the pledger.’ If the value is less than what was loaned on security for it, the broker takes the rest of his due from the pledger.

If the value is the exact amount of the loan, the pledge is compensated for by the loan.’ Yahya said that he heard Malik say, ‘What is done in our community about two men who have a dispute about an amount of money loaned on the security of a pledge – the pledger claiming that he pledged it for ten dinars and the broker insisting that he took the pledge as security for twenty dinars, and the pledge is clearly in the possession of the broker – is that the broker is made to take an oath when the value of the pledge is fully known.

If the value of the pledge is exactly what he swore that he had loaned on security for it, the broker takes the pledge as his right. He is more entitled to take precedence with an oath since he has possession of the pledge. If the owner of the pledge wants to give him the amount which he swore that he was owed, he can take the pledge back.

If the pledge is worth less than the twenty dinars he loaned, then it is said to the pledger, ‘Either you give him what he has sworn to and take your pledge back, or you swear to what you said you pledged it for.’ If the pledger takes the oath, then what the broker has increased over the value of the pledge will become invalid. If the pledger does not take an oath, he must pay what the broker swore to.’

Malik said, ‘If a pledge given on security for a loan perishes, and both parties deny each other’s rights, with the broker who is owed the loan saying that he gave twenty dinars, and the pledger who owes the loan saying that he was given only ten, and with the broker who is owed the loan saying the pledge was worth ten dinars, and the broker who owes the loan saying it was worth twenty, then the broker who is owed the loan is asked to describe the pledge.

If he describes it, he must take an oath on its description. Then people with experience of it evaluate that description. If the value of the pledge is estimated to be more than what the broker claims it was, he takes an oath as to what he claimed, and the pledger is given what is over from the value of the pledge. If its value is less than what the broker claims of it, he is made to take an oath as to what he claims is his.

Then he demands settlement according to the actual value of the pledge. The one who owes the loan is then made to take an oath on the extra amount which remains owing against him to the claimant after the price of the pledge is reached. That is because the broker becomes a claimant against the pledger. If he takes an oath, the rest of what the broker swore to of what he claimed above the value of the pledge is invalidated.

If he draws back, he is bound to pay what remains due to the broker after the value of the pledge.’ Yahya said that he heard Malik say, ‘What is done in our community about a man who rents an animal for a journey to a specified place and then he goes beyond that place and further, is that the owner of the animal has a choice. If he wants to take extra rent for his animal to cover the distance overstepped, he is given that on top of the first rent and the animal is returned.

If the owner of the animal likes to sell the animal from the place where he over-steps, he has the price of the animal on top of the rent. If, however, the hirer rented the animal to go and return and then he overstepped when he reached the city to which he rented him, the owner of the animal only has half the first rent. That is because half of the rent is going, and half of it is returning.

If he oversteps with the animal, only half of the first rent is obliged for him. Had the animal died when he reached the city to which it was rented, the hirer would not be liable and the renter would only have half the rent.’

Malik said, ‘That is what is done with people who overstep and dispute about what they took the animal for.’ Malik said, ‘It is also like that with some one who takes qirad-money from his companion.

The owner of the property says to him, ‘Do not buy such-and-such animals or such- and-such goods.’ He names them and forbids them and disapproves of his money being invested in them. The one who takes the money then buys what he was forbidden. By that, he intends to be liable for the money and take the profit of his companion. When he does that, the owner of the money has an option.

If he wants to enter with him in the goods according to the original stipulations between them about the profit, he does so. If he likes, he has his capital guaranteed against the one who took the capital and over stepped the mark.’

Malik said, ‘It is also like that with a man with whom another man invests some goods. The owner of the property orders him to buy certain goods for him which he names. He differs, and buys with the goods something other than what he was ordered to buy. He exceeded his orders. The owner of the goods has an option. If he wants to take what was bought with his property, he takes it.

If he wants the partner to be liable for his capital he has that.’ Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price.

Yahya said that he heard Malik say, ‘What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him.’”

Yahya said that he heard Malik say, ‘If a man is entrusted with some wealth and then trades with it for himself and makes a profit, the profit is his because he is responsible for the property until he returns it to its owner.

‘ Yahya related to me from Malik from Zayd ibn Aslam that the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, ‘If someone changes his deen – strike his neck!’ The meaning of the statement of the Prophet (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, in our opinion and Allah knows best, is that ‘if someone changes his deen, strike his neck!’

refers to those who leave Islam for other than it – like the heretics and their like, about whom it is known. They are killed without being called to tawba because their tawba is not recognised. They were hiding their kufr and publishing their Islam, so I do not think that one calls such people to tawba, and one does not accept their word.

As for the one who goes out of Islam to something else and divulges it, one calls him to tawba. If he does not turn in tawba, he is killed. If there are people in that situation, I think that one should call them to Islam and call them to tawba. If they turn in tawba, that is accepted from them. If they do not turn in tawba, they are killed.

That does not refer as we see it, and Allah knows best, to those who come out of Judaism to Christianity or from Christianity to Judaism, nor to someone who changes his deen from the various forms of deen except for Islam. Whoever comes out of Islam to other than it and divulges that, that is the one who is referred to, and Allah knows best.’’”

Sad said, ‘Messenger of Allah! He is the son of my brother, he made a covenant with me about him.’ Abd ibn Zama said, ‘He is my brother and the son of my father’s slave-girl and was born on my father’s bed.’ The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, ‘He is yours, Abd ibn Zama.’

Then the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, ‘A child belongs to the household (where he was born) and the adulterer is stoned.’

Then he told Sawda bint Zama, ‘Veil yourself from him,’ since he saw in him a resemblance to Utba ibn Abi Waqqas.” Aishah added, “He did not see her until he met Allah, the Mighty, the Majestic!”

This is half of the inheritance of the one thought to be related, had he been related. If the other confirms him, he takes the other 100 and so he completes his right and his relationship is established. His position is similar to that of a woman who confirms a debt against her father or her husband and the other heirs deny it. She must pay to the person whose debt she confirms, the amount according to her share of the full debt, had it been confirmed against all the heirs.

If the woman inherits an eighth, she pays the creditor an eighth of his debt. If a daughter inherits a half, she pays the creditor half of his debt. Whichever women confirm him, pay him according to this.

Malik said, ‘If a man’s testimony is in agreement with what the woman testified to, that so- and-so had a debt against his father, the creditor is made to take an oath with one witness and he is given all his due. This is not the position with women because a man’s testimony is allowed and the creditor must take an oath with the testimony of his witness, and take all his due.

If he does not take an oath, he only takes from the inheritance of the one who confirmed him according to his share of the debt, because he confirmed his right and the other heirs denied it. It is permitted for him to confirm it.’

Yahya said that Malik related from Ibn Shihab from Salim ibn Abdullah ibn Umar from his father that Umar ibn al-Khattab said, ‘What’s the matter with men who have intercourse with their slave- girls and then dismiss them? No slave-girl comes to me whose master confesses that he has had intercourse with her but that I connect her child to him, whether or not he has practised coitus interruptus or stopped having intercourse with her.’”

Muhammad said, “No.” Umar said, “Why do you prevent your brother from what will benefit him and is also useful for you? You will take water from it first and last and it will not harm you.”

Muhammad said, “No, by Allah!” Umar said, “By Allah, he will pass it through, even if it is over your belly!” Umar ordered him to allow its passage and ad-Dahhak did so.

It was the same with the tailor and the gold-smith. They took an oath about it unless they produced something they would not normally have been employed to do. In that situation their statement was not allowed and the owner of the garment had to take an oath. If he rejected it and refused to swear, then the dyer was made to take an oath.

Yahya said, “I heard Malik speak about a dyer who was given a garment and he made a mistake and gave it to another man and the one to whom he gave it wore it. He said, ‘The one who wore it has no damages against him, and the washer pays damages to the owner of the garment. That is when the man wears the garment which was given him without recognizing that it is not his.

If he wears it knowing that it is not his garment, he is responsible for it.’ ‘ Yahya said that he heard Malik say, ‘What is done in our community about a man who refers a creditor to another man for the debt he owes him is that if the one referred to goes bankrupt or dies, and does not leave enough to pay the debt, then the creditor has nothing against the one who referred him and the debt does not return to the first party.’

Malik said, ‘This is the way of doing things about which there is no dispute in our community.’ Malik said, ‘If a man has his debt to somebody taken on for him by another man and then the man who took it on dies or goes bankrupt, then whatever was taken on by him returns to the first debtor.’

Yahya said that he heard Malik say, ‘If a man buys a garment which has a defect, a burn or something else, which the seller knows about and that is testified against him or he confirms it, and the man who has bought it causes a new tear which decreases the price of the garment, and then he learns about the original defect, he can return it to the seller and he is not liable for his tearing it.

‘If a man buys a garment which has a defect of a burn or flaw, and the one who sold it to him claims that he did not know about it, and the buyer has cut the garment or dyed it, then the buyer has an option. If he wishes, he can have a reduction according to what the burn or flaw detracts from the price of the garment and he can keep the garment, or if he wishes to pay damages for what the cutting or dyeing has decreased of the price of the garment and return it, he can do so.

‘If the buyer has dyed the garment with a dye which increases the value, the buyer has an option. If he wishes, he has a reduction from the price of the garment according to what the defect diminishes or if he wishes to become a partner with the one who sold the garment he does so. The price of the garment with a burn or flaw is looked at.

If the price is ten dirhams, and the amount by which the dyeing increased the value is five dirhams, then they are partners in the garment, each according to his share. In this reckoning is the amount by which the dyeing increases the price of the garment.’ Yahya related to us from Malik from Ibn Shihab from Humayd ibn Abd ar-Rah man ibn Awf and from Muhammad ibn An-Numan ibn Bashir that they related to him that An-Numan ibn Bashir said that his father Bashir brought him to the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, and said, ‘I have given this son of mine one of my slaves.’

The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, ‘Have you given each of your children the same as this?’ He said, ‘No.’ The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, ‘Then take the slave back.’’’’”

If he refuses, the giver is made to take an oath. If he also refuses to take an oath, he gives to the recipient what he claims from him if he has at least one witness. If he does not have a witness, he has nothing.

‘ Malik said, ‘If someone gives a gift not expecting anything in return and then the recipient dies, the heirs are in his place. If the giver dies before the recipient has received his gift, the recipient has nothing. That is because he was given a gift which he did not take possession of. If the giver wants to keep it, and he has called witnesses to the gift, he cannot do that.

If the recipient claims his right he takes it.’ Malik related to me from Daud ibn al-Husayn from Abu Ghatafan ibn Tarif al-Muriyi that Umar ibn al-Khattab said, ‘If someone gives a gift to strengthen ties with a relative or as sadaqa, he cannot have it returned. If some one, however, gives a gift seeking by it favour or reward, he has his gift and can reclaim it if he does not have satisfaction from it.’

Yahya said that he heard Malik say, ‘The generally agreed-on way of doing things in our community is that if the gift is returned to the one who gave it for recompense, and its value has been either increased or decreased, the one to whom it has been given gives the owner its value on the day he received it.’’”

The father cannot take back anything from the gift after debts are started against it. ‘If a man gives his son or daughter something and a woman marries the man, and she only marries him for the wealth and the property which his father has given him and so the father wants to take that back, or, if a man marries a woman whose father has given her a gift and he marries her with an increased bride-price because of the wealth and property that her father has given, then the father says, ‘I will take that back,’ then the father cannot take back any of that from the son or daughter if it is as I have described to you.’

Malik related to me from Ibn Shihab from Abu Salamah ibn Abd ar- Rahman ibn Awf from Jabir ibn Abdullah al-Ansari that the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, ‘If someone is given a life pension, for him and his posterity, it belongs to the person to whom it has been given.

It never reverts to the one who gave it because he gave a gift and the rules of inheritance apply to it.’”