by the ruler to settle his debts—even if the sale disclaims liability for defects. Custodial placement is obligatory in all these cases, because, according to Mālik, a sale disclaiming liability does not dispense with custodial placement. This applies whether the price is payable immediately or deferred, and whether or not the seller engages in intercourse. However, if the sale is for immediate payment, payment during custodial placement may not be stipulated, for the reason already explained: this entails combining a sale with a loan that yields a benefit.

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There are two opinions on whether the price must be placed in safekeeping during custodial placement and whether this may be judicially enforced. The apparent position in the Book of Invalid Sales in al-Mudawwana is that it is deposited with a trustworthy person. This is also Mālik’s position—may Allah have mercy on him—in al-Wādiha and Ibn Abdūs’s book, and the position of Ibn al-Mawwāz. Al-Utbiyya, however, records a contrary position from Mālik: depositing it with a trustworthy person is not judicially enforceable, and the purchaser need not hand over the price until his entitlement to the enslaved woman is established upon her completion of the waiting period to establish freedom from pregnancy. This is the apparent position in the Book of Establishing Freedom from Pregnancy in al-Mudawwana.

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If the price is deposited with a trustworthy person and is lost before she completes the waiting period, the loss is borne by the party to whom it would ultimately have gone. This is Mālik’s position—may Allah Most High have mercy on him—in the Book of Establishing Freedom from Pregnancy in al-Mudawwana. It has also been said that the loss falls on the purchaser, and this too has been reported from Mālik. According to this position, if the enslaved woman emerges from custodial placement free of defects, the purchaser must pay the seller the price again, and the sale between them is completed. It has also been said that the sale is rescinded. In my view, this means that it is rescinded if the purchaser does not wish to make another payment from his own funds.

There is also disagreement concerning the case in which she emerges from custodial placement with a defect and the price has already been lost. It has been said that he may take her in return for the payment that was lost; it has also been said that he may do so only upon making another payment. In his Dīwān, as explained on his authority by Ibn Abdūs, Ibn al-Mājishūn distinguished between a defect arising before the loss of the price and one arising afterwards. He said: If the defect arises before the price is lost, the purchaser may take her with the defect in return for that lost payment, because his right to choose had already arisen before the price was lost, and its loss does not extinguish that right. If, however, the price is lost after the defect has arisen, he may not take her in return for that lost payment; he must make a payment for her.