constituting an undivided share—for example, by selling someone a house except for one-quarter or one-third of it—and to exclude a specifically identified part when it can be separated without causing harm. Examples include selling him the fruit of an orchard except for certain designated palm trees, or selling him garments, slaves, or livestock that both parties have inspected, except for particular items they have identified.

They differed over reserving part of a usufruct, such as the right to reside in a house for one month, to have a slave serve for one month, or to ride an animal for a specified period or to a particular town. Yet the well-known jurists, their followers, and the majority of the Companions agree that such an exclusion may [occur]. For example, if someone purchases a married slave woman, the right to sexual relations with her, which belongs to her husband, is not included in the contract. Aisha purchased Barīra while the latter was married. However, she purchased her subject to the condition that she emancipate her, so she had no right to dispose of her except by emancipating her, and emancipation did not conflict with Barīra’s marriage. For this reason, Ibn Abbās (may Allah be pleased with them both)—who was among those who narrated the hadith of Barīra—held, as did a group of the Companions, that the sale of a slave woman effects her divorce. They based this on their interpretation of the words of Allah Most High: “Also prohibited are married women, except those whom your right hands possess” [Women: 24] [Women: 24]. They said: “If he purchases her, receives her as a gift, or inherits her, she has come into the possession of his right hand and thus becomes lawful to him. This can only occur if the husband’s marital right has ended.” Some jurists also cited the hadith of Barīra as evidence for this.

Ahmad did not accept this argument, because Ibn Abbās narrated the hadith yet held a contrary view. This—and Allah knows best—is for the reason I have mentioned: Aisha did not acquire unrestricted ownership of Barīra.

Moreover, all the jurists without exception, together with the majority of the Companions, hold that when ownership of a married slave woman is transferred by sale, gift, inheritance, or the like—and her owner’s title to her was legally protected—the husband’s marital right over her does not cease. Rather, the purchaser or other transferee acquires ownership of her except for the right to sexual relations with her.