of manumission upon death for a female slave on the grounds that the pledge extends to her children, who acquire the same status alongside her. He asserted that there was consensus on this, unlike a bequest. His argument is not conclusive, however, since there is no consensus. Abū Bakr ibn al-Mundhir related in his book al-Ishrāf that ‘Umar ibn ‘Abd al-‘Azīz, ‘Atā’, and Jābir ibn Zayd held that her children remain slaves. Jābir ibn Zayd argued that this resembles an orchard which a man gives in charity upon his death while retaining its fruit throughout his lifetime. He thus assigned the children of such a female slave the same ruling as the yield of property. Al-Shāfi‘ī held that there were two opinions on the matter:

The first is that they have the same status as their mother.

The second agrees with Jābir ibn Zayd’s position. Al-Muzanī inclined towards Jābir ibn Zayd’s position, saying, “This is the more consistent of the two with al-Shāfi‘ī’s position.”

I say: There is likewise disagreement concerning the children born to a male slave pledged to manumission upon his master’s death by his own female slave. Consistent with his principle, Mālik held that they share their father’s status and are pledged to manumission alongside him. It is related from ‘Abd Allāh ibn ‘Umar that they have the same status as their mother. This was also the position of ‘Atā’, al-Zuhrī, al-Awzā‘ī, and al-Layth ibn Sa‘d. If they are assigned their mother’s status, they remain slaves, like the property of their father, and his master may take them from him unless the master falls ill or dies.

Al-Mudawwana records a third opinion from Yahyā ibn Sa‘īd: “A slave pledged to manumission upon his master’s death may not be sold. His master has the stronger claim to his property throughout the master’s lifetime. When his master dies, the slave’s property belongs to him, but his children by his female slave belong to his master’s heirs, because his children are not part of his property.” These are his exact words. Thus, he did not assign the children born to him by his female slave their father’s status, making them pledged to manumission alongside him, as Mālik held—may Allah have mercy on him. Nor did he assign them their mother’s status. Had he assigned them their mother’s status, as Ibn ‘Umar, ‘Atā’, al-Zuhrī, and al-Awzā‘ī held, it would follow that, if the master did not take them away before falling ill or dying, they would follow their father just as his property does: if one-third of the estate covered his manumission, his children would become free by virtue of his ownership of them; if it did not, as much of him would be freed as that third covered, and his children would be left in his possession. Yahyā ibn Sa‘īd may, however, have meant that his children by his female slave were born before the pledge of manumission. On this interpretation, his position would not conflict with Mālik’s—may Allah have mercy on him.

Section

We have already discussed an unconditional pledge of manumission upon death. As for a qualified pledge, it is one in which the master qualifies his pledge