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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 565989 - Issue: He said: (If he bequeaths one of his slaves to a man without naming the specific slave, he receives one of them by drawing lots, provided it falls within the one-third limit; otherwise, he owns a portion of him equivalent to the one-third)

Translation · EN

the lot falls on the one whose value is two hundred, you multiply it by three, it becomes six hundred, and you relate the value of both slaves together, which is five hundred, to it; you find it is five-sixths of it, so five-sixths of him is emancipated. And if it falls on the other, five-ninths of him is emancipated. The complete explanation of that will come in the chapter on Emancipation, if Allah the Almighty wills.

989 - Issue: He said: (And if he bequeaths a slave from among his slaves to a man, and does not name the slave, he shall have one of them by lottery, if it comes out of the one-third, and if not, he shall own of him to the extent of the one-third.)

The summary of this is that a bequest of an unspecified thing, such as 'a slave from among my slaves' or 'a sheep from among my sheep', is valid. We have previously mentioned that a bequest of an unknown thing is valid. This is the opinion of Malik, Al-Shafi'i, and Ishaq. There is a difference of opinion regarding what the legatee is entitled to. It is narrated that he is entitled to one of them by lottery, and it is likely that this is the opinion of Ishaq. Ibn Mansur reported that he is given the best of them, meaning the heirs give him whichever of the slaves they prefer. This is the opinion of Al-Shafi'i. Malik expressed an opinion implying that if he bequeaths a slave and he has three slaves, he has one-third of them; and if they are four, he has a quarter of them, for he said: If he bequeaths a tenth of his camels, and they are one hundred, he is given one-tenth of them, and palm trees, slaves, and livestock follow this rule. The correct view is that he is given ten by number, because that is what his phrasing encompasses, and his phrasing is what demands action, so it should not be deviated from. However, he is given one by lottery, because he is entitled to one unspecified person, so one is no more entitled than another; thus, it is necessary to resort to a lottery, just as if he had emancipated one of them. According to what Ibn Mansur reported, the heirs give him from his slaves whatever they wish, whether healthy or defective, good or poor; because the name 'slave' covers it, so it suffices, just as if he had bequeathed a slave to him without attributing it to his slaves. If he did not have but one slave, the bequest is specific to him, and likewise if he had slaves and they all died except one, the bequest is specific to him due to the impossibility of delivering the remainder. And if his slaves perish

Notes

(7) In the original: "it becomes two". (1) In M: "and he did not".

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