the killing of him, so the Prophet (peace and blessings of Allah be upon him) ordered the qasamah (1). As for if the victim is a disbeliever or a slave, and his killer is from those upon whom retribution (qisas) is obligatory for killing him—which is the one who is equal to him (2) in his status—then qasamah applies to it. This is the opinion of al-Shafi'i and the People of Reason (Ahl al-Ra'y). Al-Zuhri, al-Thawri, Malik, and al-Awza'i said: There is no qasamah in the case of a slave; because he (3) is property, so qasamah does not become obligatory regarding him, like the killing of livestock. Our argument is that it is a killing that necessitates qisas, so it mandates qasamah, like the killing of a free person, and it differs from livestock, for there is no qisas for them. The master shall swear the oaths on behalf of the slave because he is the one entitled to his blood. The same applies to the umm al-walad (a slave woman who has borne her master a child), the mudabbar (a slave granted post-mortem manumission), the mukatab (a slave in a contract of manumission), and the one whose manumission is suspended upon a condition, just like the qinn (absolute slave); because the status of servitude is established for them.

If the killer is one upon whom qisas is not obligatory, such as a Muslim who kills a disbeliever or a free man who kills a slave, then there is no qasamah in it, according to the apparent statement of al-Khiraqi, which is the opinion of Malik; because qasamah only pertains to that which necessitates qisas (retaliation). The Qadi (al-Qadi Abu Ya'la) said: Qasamah applies to both cases, and this is the opinion of al-Shafi'i and the People of Reason; because it is the killing of a human being that necessitates expiation, therefore qasamah was legislated for it, like the killing of a free Muslim. Furthermore, because that which serves as evidence in the killing of a free Muslim serves as evidence in the killing of a slave or a disbeliever, such as [the requirement of] testimony. Our argument is that it is a killing that does not necessitate qisas, so it resembles the killing of livestock, and it does not follow that just because it is legislated where qisas is required, it is legislated where it is not, supported by the fact that when a slave (5) is accused of killing his master, qasamah is legislated if the killing necessitates qisas, as mentioned by the Qadi, because it is not permissible to kill him before that, and if it did not necessitate qisas, qasamah would not be legislated.

Section: If the slave of a mukatab is killed, then the mukatab has the right to swear the oaths against the perpetrator; because he is the owner of the slave (6) who possesses the right to dispose of him and his compensation, and his [own] master has no authority to extract him from him, and he has the right to purchase him from him.