the first. If he purchases a Muslim slave and exits with him to the Abode of War, then is captured, [the slave] is not taken as spoils of war; because his ownership of him was not established, as the purchase is invalid. He [the slave] is returned to his seller, and his seller returns the price to the Harbi (belligerent); because it occurred under a safe conduct. If the slave has perished, the Harbi owes his value, and they return the surplus to one another.

Section: If a woman from the Abode of War enters our land under safe conduct and marries a Dhimmi (protected non-Muslim) in our territory, then desires to return, she is not prevented [from doing so] if her husband agrees or separates from her. Abu Hanifa said: She is prevented. Our argument is that it is a contract that does not bind the man to stay, so it does not bind the woman, like a lease contract.

1642 - Issue: He said: "And whoever seeks safe conduct to open the fortress, and he does so, and each one of them says: 'I am the one who was granted it,' not one of them shall be killed."

The summary of this is that when the Muslims besiege a fortress and a man calls out to them: "Grant me safe conduct and I will open the fortress for you," it is permissible for them to grant him safe conduct. When Ziyad ibn Labid besieged al-Najir, al-Ash'ath ibn Qays said: "Grant me safe conduct for ten people, and I will open the fortress for you." And they did so. If the person who was granted the safe conduct is uncertain, and each one of the people of the fortress claims it, if the owner of the safe conduct is known, it is acted upon accordingly. If he is not known, it is not permissible to kill any one of them; because it is possible that any one of them is telling the truth, and the permissible has become confused with the forbidden in a matter where there is no necessity, so all of them become forbidden, just as if a dead animal were confused with a slaughtered one, or his sister with strange women, or an adulterer who is a muhsan (someone who has had lawful intercourse) with protected men. This is the position of al-Shafi'i, and I know of no disagreement regarding it. Regarding their enslavement, there are two opinions: One of them is that it is forbidden. The Qadi mentioned that Ahmad explicitly stated this. This is the madhhab (school) of al-Shafi'i, based on what we mentioned regarding killing, for the enslavement of one whose enslavement is not permissible is forbidden. The second [opinion] is that lots are drawn among them, the owner of the safe conduct is identified by lot, and the rest are enslaved. This was stated by Abu Bakr; because the right belongs to one of them who is unknown, so lots are drawn among them, as if he freed one of his slaves and it was unclear. This differs from killing, for killing is the shedding of blood which is averted by doubts, unlike slavery; for this reason, killing is prevented in the case of women and children, but not enslavement. Al-Awza'i said: If one of the people of the fortress becomes Muslim before it is opened, appearing to us, then it becomes unclear and each one of them claims to be the one who became Muslim, each one of them strives to [pay] his own value, and a tenth of his value is left to him. The analogy of our madhhab is that there are two opinions regarding this, like the one preceding it.