Section
Some scholars have argued that a bequest differs from a pledge of manumission upon death on the basis of a consensus that the latter cannot be verbally revoked, whereas a bequest can. This is incorrect, however, since Abū Thawr permits the verbal revocation of a pledge of manumission upon death, as we have related.
Section
Further evidence supporting Mālik’s position that a slave pledged to manumission upon his master’s death may not be sold is that agreements of manumission fall into two categories. In the first, manumission is made contingent upon an event that will inevitably occur, such as the arrival of a particular month, Zayd’s death, or something similar. In this category, the slave may not be sold. In the second, manumission is made contingent upon an event that may or may not occur, such as Zayd’s arrival or something similar. According to the best-known opinion, sale is permissible in this category until the condition is fulfilled.
A slave pledged to manumission upon his master’s death belongs to the first category, since his freedom is contingent upon an event that will inevitably occur: his master’s death. His sale must therefore be impermissible. He also resembles a female slave who has borne her master a child: she may not be sold because her freedom is contingent upon her master’s death.
If someone objects, “If selling a slave pledged to manumission upon his master’s death is permissible, he would differ from a slave whose manumission is fixed for a future date, because the former’s manumission is charged against one-third of the estate, whereas the latter’s is charged against the estate as a whole. Since the former’s manumission is charged against one-third, his sale must be permissible, just like that of a slave whose manumission is stipulated in a bequest,” the answer is: This is incorrect. The fact that the manumission stipulated in a bequest is charged against one-third is not the legal cause permitting the slave’s sale. The evidence is that if someone grants his slave freedom at a future date which the master is known not to be able to live to see, but which the slave may live to see, the manumission is charged against one-third, yet the slave may not be sold. The presence of the cause without the corresponding ruling necessarily clarifies the nature of that cause. This is plain.
Section
The manumission of a slave pledged to freedom upon his master’s death is charged against one-third only because the master is suspected of seeking to retain his slave’s services throughout his lifetime, then free him from the estate as a whole after his death, thereby defeating the inheritance Allah has ordained for the heirs. Some scholars do not take this suspicion into account and therefore hold that his manumission is charged against the estate as a whole. This is Dāwūd’s position. It is refuted by Abū Qilāba’s report that the Prophet, peace be upon him, said:
“The manumission of a slave pledged to freedom upon his master’s death is charged against one-third.”
Ibn al-Qassār has also argued for the binding nature of the pledge