[The Book of Mukātabah]
[Essential Elements of Mukātabah]
A comprehensive treatment of mukātabah is confined to three things: its pillars, its conditions, and its rulings.
As for the pillars, they are three:
- The contract itself—together with its conditions and form;
- The contracting party;
- The object of the contract and the attributes of both parties.
We shall set out, under each of these headings, the well-known questions discussed by the jurists of the various regions.
Matters relating to the contract: One of the famous issues here is their disagreement over the very institution of mukātabah—does it fall under obligation or recommendation?
• The jurists of the major centers say that it is recommended.
• The Ẓāhirīs say that it is obligatory, arguing from the outward sense of the Almighty’s words:
“If you know any good in them, then draw up a contract of manumission with them” (Q 24:33),
and maintaining that a command denotes obligation.
The majority, however, noting that the basic principle is that no one can be forced to emancipate his own slave, interpret the verse as a recommendation so as not to contradict that principle. Moreover, since a slave has no right to compel his master to sell him—an act that would remove the slave’s person from the master’s ownership in return for payment—it is even more unlikely that he could compel him to set him free without payment, for whatever the slave earns belongs to the master. This question, strictly speaking, lies nearer to the rulings of the contract than to its pillars.
In essence, the contract is that a slave purchases his own person and property from his master with wealth he will earn himself.
The pillars of this contract, therefore, are: the price and the thing sold, the term of payment, and the wording that denotes the contract.
As for the price, they agree that the contract is valid so long as the price is specified with the clarity required in sales.
They disagree when some ambiguity remains in the wording. Abū Ḥanīfah and Mālik allow a master to contract with his slave for a female slave or a male slave without describing them in detail, on condition that the master will receive one of average value among his slaves. Al-Shāfiʿī, however, holds that it is not valid unless the slave is fully described.
Those who insist on the possibility of physical inspection treat the matter like a normal sale. Those who see the aim of the contract as generosity and freedom from haggling permit a small amount of uncertainty, similar to their difference over the bridal dower.
Mālik further allows, between a slave and his master, types of transaction that would constitute ribā between strangers, such as selling food before taking delivery, exchanging one debt for another, and the arrangement known as “reduce the amount and pay early.” Al-Shāfiʿī and Aḥmad prohibit this, and both opinions are reported from Abū Ḥanīfah.
The main argument of those who permit it is that there can be no ribā between a master and his slave, for the slave and his property belong to the master; mukātabah, they say, is a sunnah that stands on its own.