is the renewal of ownership over her person, and this has not occurred. If he sells his slave girl, then she is returned to him by rescission or mutual cancellation after he has taken possession of her or after they have separated, he is required to perform istibra' on her, because it is a renewal of ownership, regardless of whether the buyer was a woman or someone else. If that [return] is before they have separated, or before the buyer has taken the slave girl away, there are two narrations [in the school] regarding it; the first is that he must perform istibra', which is the position of Al-Shafi'i, because it is a renewal of ownership. The second is that he is not required to perform istibra', which is the opinion of Abu Hanifa if they mutually cancel the contract before taking possession, because there is no benefit in istibra' when her freedom [from pregnancy] is already established.

Section: If a man marries off his slave girl, and the husband divorces her, the master is not required to perform istibra' on her, but if she is divorced after consummation, or he dies leaving her behind, she must observe the 'idda (waiting period). If his slave girl commits apostasy, or he enters into a mukataba (contract of emancipation) with her, then the apostate embraces Islam, or the mukataba fails, she becomes lawful for her master without istibra'. This is the position of Abu Hanifa. Al-Shafi'i said: Istibra' is obligatory upon him in all these cases because his ownership of the right to enjoy her ceased and then returned, so she is analogous to one who has been purchased. Our argument is that his ownership of her was not renewed, so she is analogous to a prohibited woman when she becomes lawful, or a pledged item when it is released, for there is no disagreement regarding their lawfulness without istibra'. Furthermore, istibra' was legislated for a reason whose context is the renewal of ownership, so it is not legislated when the context and the reason are absent.

Section: If he buys a married slave girl, and the husband divorces her before consummation, she is not permissible without istibra'. Ahmad explicitly stated this, saying: "This is a stratagem (hila) devised by the proponents of ra'y (personal opinion); istibra' is necessary." The rationale for this is that ownership of her has been renewed, and her istibra' was not achieved while in his possession, so she does not become lawful without istibra', just as if she were not married. Also, because waiving the istibra' here is a pretext for waiving it in cases where one intends to do so, by marrying her off at the time of her sale and then having her husband divorce her after the sale is complete, and stratagems are forbidden. As for if the husband has consummated the marriage with her and then divorces her, she must observe the 'idda, and the purchaser is not required to perform istibra' on her, because that [ascertainment of purity] has been achieved by the 'idda, and because if she were to be emancipated, istibra' would not be required of her alongside the 'idda, and because she has already cleared