price would be substantially reduced by pregnancy, and for one with whom the seller has had intercourse. This formulation is sound, because pregnancy does not substantially reduce the value of a low-grade enslaved woman, a married woman, or one who engages in unlawful intercourse. Nor is pregnancy feared in a young girl if girls of her age are not ordinarily subjected to intercourse.
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There is disagreement concerning a girl who is subjected to intercourse but is too young to conceive. Mālik—may Allah Most High have mercy on him—held that custodial placement is required for her, whereas Mutarrif and Ibn al-Mājishūn said that it is not. This disagreement rests on whether a waiting period to establish freedom from pregnancy is required for a girl at this stage, as discussed previously.
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Custodial placement is required for enslaved women of this description. If pregnancy becomes apparent, it is not treated like other defects discovered in the item sold, which give the purchaser the choice of returning it or keeping it. Nor is it treated like insanity, leprosy, or vitiligo, which justify returning a male or female slave if they appear within a year, although the sale may proceed without custodial placement. This is because insanity, leprosy, and vitiligo are rare, and holding a male or female slave for an entire year to establish freedom from insanity, leprosy, and vitiligo would clearly harm both parties to the sale. Pregnancy in an enslaved woman, however, is not rare but common. Mālik—may Allah Most High have mercy on him—said: “Most women can become pregnant.” The period for which she is held in custodial placement is short and causes neither party harm. It also eliminates uncertainty, risk, and other impermissible consequences, such as a loan yielding a benefit if the purchaser pays the price in advance.
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Custodial placement must be enforced in every locality, whether or not it is customary there. Mālik’s position—may Allah have mercy on him—did not vary on this, as it did concerning the warranty. He also held that it is obligatory for everyone, whether resident or traveller. Mālik—may Allah have mercy on him—was asked about this concerning the people of Minā and the people of Egypt at the time of departure for Hajj, with regard to outsiders who arrive. He held that they must be compelled to comply, whether they liked it or not. It makes no difference whether the enslaved woman is sold by her owner, by his agent, or