the umm al-walad, because it is not permissible to transfer ownership in the umm al-walad, and it cannot be established for anyone other than her master. The benefit of the disagreement is that whoever held that ownership is established in both said: whenever they are divided, or someone buys them, their master does not have the right to take them back except for their price. Al-Zuhri said regarding the umm al-walad: Her master takes her (38) for a fair valuation. Malik said: The Imam shall ransom her; if he does not do so, her master takes her for a fair valuation, and he shall not let someone for whom she is not lawful make her private parts lawful to him. Whoever said: Ownership is not established in them, [maintains that] they are both returned to their state in all cases, like a free person. If someone buys them, the ruling regarding them is the same as the ruling regarding a free person if one buys him.

Section: If a Muslim's slave runs away to the Abode of War (Dar al-Harb) and they take him, they own him like [other] property. This is the opinion of Malik, Abu Yusuf, and Muhammad. Abu Hanifah said: They do not own him. A similar view is reported from Ahmad, because when he is in the Abode of War, his master's hand (authority) over him ceases, and he becomes in his own hands, thus he is not owned, like a free person. Our argument is that he is property; if they had taken him from the Abode of Islam, they would have owned him, so if they take him from the Abode of War, they own him, like livestock.

1661 - Issue; he said: (And whoever cuts from their wasteland a stone or wood, or hunts a fish or a gazelle, shall return it to the rest of the army if he has no need for eating it and utilizing it.)

This means if he takes something of value from the Abode of War, the Muslims are his partners in it. Abu Hanifah and al-Thawri held this view. Al-Shafi'i said: The one who takes it owns it exclusively, because if he had taken it from the Abode of Islam, he would have owned it; so if he takes it from the Abode of War, he owns it, like a trivial thing. This is the opinion of Makhul and al-Awza'i, and it was narrated from al-Qasim and Salim. Our argument is that it is property of value, taken from the land of war (1) by the strength of the Muslims, so it is booty, like foodstuffs. It differs from what he takes (2) from the Abode of Islam, because he does not need the army to take it. As for if he is in need of eating it and utilizing it, he may do so and need not return it, because if he found food owned by the disbelievers, he would be permitted to eat it if he were in need (3); therefore, what he takes from game and permissible things is more deserving [of being permissible].