The Exalted says: "Test the orphans until they reach the age of marriage" (Quran 4:6). Testing (ibtila') means examining him by delegating disposal to him to see whether it occurs from him in a way that serves his interest or not, and whether he is cheated in his buying and selling or not. The master’s obligation to his discerning slave for kitaba is permission for him to accept it. Once this is established, if the master entering into the kitaba is a child or insane, his disposal and speech have no validity. If a legally responsible person enters into a kitaba with his child or insane slave, this act does not acquire the status of a valid nor an invalid kitaba, because there is no legal effect to their speech. However, if he says: "If you two pay me, then you are both free," and they pay, they are emancipated by the condition, not by the kitaba, and what is in their possession belongs to their master. If he does not say that, they are not emancipated. This was mentioned by Abu Bakr. The Qadi said: They are emancipated, which is the school of al-Shafi'i, because the kitaba entails the meaning of a condition, so emancipation is achieved here by the pure condition, just as if he said: "If you pay me, you are free." Our argument is that it is not a condition either explicitly or in meaning; rather, it is a void contract, so it resembles a void sale.

Section: If a dhimmi (protected non-Muslim subject) enters into a kitaba with his Muslim slave, it is valid, because it is a contract of exchange or an emancipation conditional upon a condition, and both are valid from him. If they refer the matter to the judge after the kitaba, he shall examine the contract; if it is consistent with the Sharia, he shall ratify it, whether they referred the matter before both became Muslims or after. If it is an invalid kitaba, such as if the compensation is wine, pork, or other types of corruption, there are three issues. The first is that they have taken possession during their state of disbelief, in which case the kitaba is effective and emancipation is achieved, because what was completed during the state of disbelief is not overturned by the judge, and he shall rule for emancipation, whether they referred the matter before or after embracing Islam. The second is that they took possession after embracing Islam, then referred the matter to the judge; it also leads to emancipation, because this is an invalid kitaba, and its ruling is the ruling of an invalid kitaba contracted within Islam, as we will mention, God willing. The third is that they referred the matter before taking possession of the invalid compensation, or before taking possession of part of it, in which case the judge shall void this kitaba and annul it, because it is an invalid kitaba that has not been connected with a taking of possession that would make it binding.