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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 14 · Page 359

Translation · EN

in half of his value, and then his emancipator becomes wealthy, he returns to him for half of the value; because it is he who forced him into this and charged him with it. From Abu Yusuf and Muhammad it is narrated that they said: The entirety of him becomes free, and the value of the partner's share is held as a liability upon him; for emancipation is not divisible. If it is found in a portion, it spreads to the whole, like divorce. The emancipator is required to pay the value because he has destroyed his partner's share by his emancipation of it, so its value becomes a liability upon him, just as if he had destroyed it by killing it. Abu Hanifah said: Emancipation does not spread; rather, it entitles one to emancipate the remaining portion, and the partner is given the choice between emancipating his share—in which case the wala' (right of patronage) is between them both—or having the slave work to pay the value of his share; when he performs that for him, he becomes free, and the wala' is between them both. Our evidence is the hadith of Ibn 'Umar, which is a sahih (authentic) hadith firmly established among all scholars of hadith. Furthermore, working for payment (al-isti'sa') is emancipation for a consideration, so one cannot be forced into it, like a contract of manumission (kitabah). Also, in this work there is harm to both the partner and the slave. As for the partner, we refer him to work from which perhaps nothing will be obtained at all, and even if it is obtained, it may be little and scattered, while his ownership is lost. As for the slave, we force him into work he did not desire and earnings he did not choose, and this is harm in the right of both. The Prophet (peace be upon him) said: "There shall be no harming nor reciprocating of harm." Sulayman ibn Harb said: Is it not that the emancipator is only obligated to pay the price of what remains of the slave so that no harm enters upon his partner? So if they order him to work and give him two dirhams every month, and he is unable to own it, then what harm is greater than this! As for the hadith of working for payment (al-isti'sa'), al-Athram said: Sulayman ibn Harb mentioned it, but he impugned it and declared it da'if (weak). Abu 'Abd Allah said: Nothing regarding working for payment is established from the Prophet (peace be upon him); the hadith of Abu Hurayrah is narrated by Ibn Abi 'Arubah. As for Shu'bah and Hisham al-Dastawa'i, they did not mention it. Ma'mar narrated it but did not mention the work (al-si'ayah) in it. Abu Dawud said: Hammam also does not say it.

Notes

= It was also extracted by Ibn Majah, in: Chapter on Whoever Emancipates a Share He Owns in a Slave, from the Book of Emancipation. Sunan Ibn Majah 2/844. And Imam Ahmad, in: Al-Musnad 2/255, 426, 472. (7) In the original manuscript: "yantaqid" (it is invalidated). (8) In the original manuscript: "atlafa" (he destroyed). (9) In M: "dimar". Its extraction preceded in 4/140. (10) In B and M: "amarahu" (he ordered him). (11) In A, B, and M: "thabata" (it was established). The reading in the original manuscript means: "something that is established". (12) In A, B, and M: "'Urwah". (13) In the original manuscript, A, and B: "yadhkuruhu" (he mentions it).

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