Section: When the dower becomes mandatory for her, if no installment of her contract has become due upon her, she has the right to demand it. If an installment has become due, and the dower is of a different kind than the currency of the contract, she also has the right to demand it. If it is of the same kind, they shall offset the accounts, and the one to whom the surplus is due shall take their surplus.

1990 - Issue: He said: "If she becomes pregnant by him, she is given the choice between declaring inability (to pay the contract installments) and becoming an umm al-walad (mother of a child by him), or proceeding with her kitabah. If she pays, she is emancipated; if she declares inability, she is emancipated upon his death. If he dies before she declares inability, she is emancipated because she is one of the ummahat al-awlad, and what remains of her kitabah is waived, and what is in her possession belongs to the heirs of her master."

The entirety of the matter is that when a master causes his mukatabah to conceive, the child is free because it is from his owned slave, and its lineage is linked to him for that reason, and no value for it is required for that reason. She becomes an umm al-walad for him for that reason, and her kitabah is not invalidated because it is a binding contract from the side of her master, and two causes have converged for her that necessitate emancipation; whichever precedes the other, its ruling is established. This is the view of al-Zuhri, Malik, al-Thawri, al-Layth, al-Shafi'i, the People of Opinion, and Ibn al-Mundhir. Al-Hakam said: "Her kitabah is invalidated, because it is a cause for emancipation, so it is invalidated by istilad (having a child by her), like tadbir (conditional emancipation)." Our position is that it is a commutative contract, so it is not invalidated by intercourse, like a sale. Furthermore, it is a cause for emancipation that the master does not have the right to revoke, so it is not invalidated by that, like suspension upon a condition. What he mentioned is invalidated by suspension upon a condition. Kitabah differs from tadbir in several ways: First, the ruling of tadbir and istilad is one and the same, which is emancipation upon death, and istilad is stronger because it is counted from the capital, and there is no way to invalidate it in any case, so one is satisfied by it rather than tadbir. Kitabah is a cause through which emancipation is hastened by payment, and what remains of her earnings belongs to her; she possesses through it her benefits and her earnings, and she exits from the management of her master, and this does not occur with istilad, so it must remain for the sake of its utility. Second, kitabah is stronger than tadbir due to its binding nature, and the fact that it is not invalidated by revocation, nor by the sale of the mukatab or gifting him. Third, tadbir is a gratuitous act, while kitabah is a binding commutative contract. Once this is established, there converge for her two causes, each of which necessitates freedom, so whichever is completed before the other, freedom is established by it, just as if it were alone, because the conjunction of one with the other while it does not contradict it does not prevent the establishment of its ruling. If she pays, she is emancipated by the kitabah, and what remains of her earnings belongs to her, because the one emancipated by kitabah has the right to what remains of her installments. If she declares inability and is returned to slavery, the ruling of the kitabah is invalidated, and the ruling of istilad remains for her in isolation, just as if she were not a mukatabah; he may have intercourse with her, marry her off, or lease her, and she is emancipated upon his death, and what is in her possession goes to the heirs of her master. If her master dies before her declaration of inability, she is emancipated because she is an umm al-walad, and the kitabah is waived because the freedom has been achieved, so the compensation offered for obtaining it is waived, as if her master had initiated her emancipation, and what is in her possession goes to the heirs of her master. This is according to the view of al-Khiraqi and Abu al-Khattab, because she was emancipated by the ruling of istilad, and the ruling of kitabah was invalidated, so she resembles someone who is not a mukatabah. Al-Qadi said in al-Mujarrad and Ibn Aqil in his book: "What remains in her possession belongs to her." This is the view of al-Shafi'i, because when emancipation occurs during the kitabah, it does not invalidate its ruling, like the waiver of the kitabah installments. Also, because her ownership was already established over what was in her possession, and nothing occurred except what removed her master's right over her, so it necessitates the removal of his right over what is in her possession, and the confirmation of her ownership and its exclusivity to her, just as it necessitated that in herself. This is the more correct view. And Allah knows best.