In the first case—where a person swears, on pain of emancipating his slave, not to perform an act—he remains in compliance with his oath. He may sell the slave or, if the slave is female, have intercourse with her. If the male or female slave remains in his ownership until he performs the act he swore not to perform, he incurs a breach of his oath, and the slave is thereby emancipated. Mālik, may Allah have mercy on him, expressed two opinions on whether children born after the oath to the male slave by his own slave woman, or to the female slave, are included in the emancipation. Ibn al-Qāsim and Asbagh preferred the view that the children are not included in the oath, because the person remains in compliance with it.

The second case—where he swears to perform an act—takes one of two forms:

First: he sets a deadline.

Second: he sets no deadline.

If he sets a deadline, he may not sell the slave before it falls due, because the slave is bound by the oath. Ibn al-Qāsim expressed two opinions on whether he may have intercourse with the slave if female. In al-Mudawwana, his position is that he may do so, because he remains in compliance with his oath. ‘Īsā, however, transmitted from him that he may not do so. This is also the position of some transmitters in al-Mudawwana, because he may have intercourse only with a slave woman whom he is entitled to sell.

If he sets no deadline, he may neither have intercourse with the slave woman nor sell the slave, because he is considered to be in breach of his oath. Any children born to her—or to the male slave by his own slave woman—are included in the oath. This is the well-known position in the school, as stated by Mālik and his companions. Al-Mughīra said that the children are not included in the oath. Al-Mabsūta records that Mālik expressed differing opinions on this, but this is an error in transmission, and Allah knows best. Mālik’s differing opinions concern only the case in which the person remains in compliance with his oath involving the slave, as explained above. Success comes from Allah.

Section

If he sells the male or female slave before fulfilling the act he swore to perform, the sale is rescinded and the slave is retained until he fulfils his oath or dies. If he dies, the slave is emancipated from one-third of his estate. An exception arises if, while in the purchaser’s possession, the slave has been emancipated or the slave woman has become the mother of his child. According to ‘Īsā’s transmission, she is not returned; according to Asbagh’s transmission, she is returned to the seller, and the purchase price is refunded to the purchaser.