Al-Muqaddimāt al-Mumahhidāt - Ibn Rush al-Jadd - (3/158)

Al-Muqaddimāt al-MumahhidātIbn Rush al-Jadd

value is charged against one-third of his estate after his death. Another opinion is that, if he dies soon afterward, before much time has elapsed, the share’s assessed value is charged against his estate as a whole and it is emancipated. This is Ashhab’s report from Mālik in al-ʿUtbiyya, and the report of Mutarrif and Ibn al-Mājishūn from him in al-Wādiha.

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If, however, he frees his share in a jointly owned slave during his illness, there are four opinions:

The first is that his co-owner’s share is immediately charged to him at its assessed value during his illness, against one-third of his estate.

The second is that this is deferred until his death.

The third distinguishes between whether or not he has secure assets. If he does, his co-owner’s share is charged to him at its assessed value during his illness; otherwise, this is deferred until his death. All these differing opinions are found in al-Mudawwana.

The fourth is that his co-owner’s share is charged to him at its assessed value only against his estate as a whole, if he recovers. If he does not recover, it is under no circumstances charged against one-third of his estate; only his own share is emancipated from that third. This is Ibn al-Mājishūn’s opinion in al-Wādiha.

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This issue may be summarized as follows: three opinions concern a man who, while healthy, frees part of his own slave or his share in a jointly owned slave, then falls ill before the remainder of his slave is emancipated or his co-owner’s share is charged to him at its assessed value, and the matter comes to light during his illness.

The first is Ibn al-Qāsim’s opinion in al-Mudawwana: the remainder of his slave is emancipated, and his co-owner’s share is charged to him at its assessed value, against one-third of his estate. According to one view, this takes place during his illness; according to another, only after his death, not during his illness. A further view is that, if he has secure assets, the remainder of his slave is emancipated during his illness, and his co-owner’s share is charged to him at its assessed value against one-third of his estate. If he has no secure assets, the remainder of his slave is not emancipated, nor is his co-owner’s share charged to him at its assessed value

القيمة بعد الموت في الثلث. وقيل إنه إن مات بحدثان ذلك ولم يَطُل قُوِّم عليه وأعتق من رأس ماله، وهي رواية أشهب عن مالك في العتبية، ورواية مطرف وابن الماجشون عنه في الواضحة. فصل وأما إن أعتق حظه من عبد بينه وبين شريكه في المرض ففي ذلك أربعة أقوال: أحدها: أنه يعجل عليه التقويم في المرض من الثلث. والثاني: أنه لا يعجل ذلك عليه حتى يموت. والثالث: الفرق بين أن يكون له مال مأمون أو لا يكون له مال مأمون؛ فإن كان له مال مأمون قوم عليه في المرض، وإن لم يكن له مال مأمون لم يقوم عليه حتى يموت، وهذا الاختلاف كله في المدونة. والرابع: أنه لا يقوم عليه نصيب شريكه إلا من رأس ماله إن صح، وإن لم يصح لم يقوم في الثلث على حال وعتق عليه فيه حظه وحده، وهو قول ابن الماجشون في الواضحة. فصل وتحصيل هذه المسألة بتلخيص أن تقول فيها: اختلف في الرجل يعتق شقصا من عبده أو شقصه من عبد بينه وبين شريكه في صحته ثم يمرض قبل أن يعتق عليه بقية عبده أو قبل أن يقوم عليه حظ شريكه فيعثر على ذلك في مرضه على ثلاثة أقوال: أحدها: قول ابن القاسم في المدونة: إنه يعتق عليه بقية عبده، ويقوم عليه حظ شريكه في الثلث. قيل: في المرض، وقيل: بعد الموت لا في المرض، وقيل: إن كانت له أموال مأمونة أعتق عليه بقية عبده في المرض وقوم عليه حظ شريكه في الثلث. وإن لم تكن له أموال مأمونة لم يعتق عليه بقية عبده، ولا يقوم حظ شريكه