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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 342Section

Translation · EN

Section: It is permissible for the guardian of an orphan to execute a mukataba (contract of manumission) for the orphan's slave, and to manumit him for a payment, if there is an advantage in it. For example, if his value is one thousand, he grants him a mukataba for two thousand, [or manumits him for two thousand]. If there is no advantage in it, it is not valid. Malik and Abu Hanifa said: His manumission is not permissible, because manumission for a payment is a conditional action, and the guardian of the orphan does not own the right to make such conditions, just like suspending it upon entering a house. Al-Shafi'i said: Neither his mukataba nor his manumission is permissible, because the objective of both is manumission, not exchange, so it is not permissible, just like manumission without compensation. Our position is that it is an exchange in which the orphan has an interest, so his guardian possesses the right to it, like selling it. The benefit of the slave is not taken into account, and it does not harm the orphan that it is a conditional action. If the advantage is achieved for the orphan, the benefit of others does not harm him, nor does the fact that manumission occurred through a condition. This differs from what they used as an analogy; for in that case there is no benefit, so it was prohibited due to the lack of advantage and the absence of a necessity, not for the reason they mentioned. If it were imagined that there is a benefit in manumission without payment, it would be rare. It is plausible that it would be valid. Abu Bakr said: Manumission without compensation is plausible for the sake of advantage, for instance, if the orphan has a slave woman and her daughter who together are worth one hundred, but if one of them were separated, she would be worth two hundred, and it is impossible to separate them by sale. Thus, he manumits the other so that the value of the remaining one increases, becoming double her [original] value.

Section: Ahmad said: It is permissible for the guardian to purchase a sacrificial animal (udhiyya) for the orphan if he has wealth. He means significant wealth such that he is not harmed by purchasing the sacrifice. This is considered as part of expanding the sustenance on this day, which is an Eid (festival) and a day of joy. In it is the comforting of his heart, its refinement, and giving him a status similar to one who has a father. It is thus placed in the same category as fine clothing and the purchase of meat, especially since expanding [one's lifestyle] on this day is recommended and established by custom, as evidenced by the saying of the Prophet (may Allah bless him and grant him peace): "These are days of eating, drinking, and remembering Allah the Almighty." Reported by Muslim. Whenever commingling the orphan's wealth...

Notes

(16) Omitted from the original. (17) In the original: "bi-manzilat". (18) In [M]: "fiha". (19) Its source has already been mentioned under Muslim, from the hadith of Nubaysha al-Hudhali, in: 4/425. See also what Muslim reported in the same chapter.

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