Discussion of the Mukātib

With regard to the mukātib—the owner who initiates the emancipation contract—the jurists are unanimous that for the contract to be valid he must be the lawful proprietor of the slave, his title beyond dispute, free of legal interdiction, and in sound physical health. They disagreed, however, over whether a mukātib may, in turn, place one of his own slaves under a mukātabah; this question will be taken up later when we examine the deeds that are or are not permitted to the mukātib.

Mālik does not allow a slave who has been licensed to trade to be entered into a mukātabah, because the contract constitutes an act of manumission, and such a slave has no authority to manumit himself. By the same token, he holds that the mukātabah of a person whose assets are engulfed by debt is invalid unless the creditors consent, provided the contract price equals the slave’s market value.

As for a mukātabah concluded during a terminal illness, Mālik treats it like a bequest: it is suspended within one-third of the estate until the sick person either recovers—whereupon it takes full effect—or dies, in which case it is carried out from that one-third just like a manumission. Another opinion states: if the master favors the slave by setting an unduly low price, the contract still stands; if he does not, the slave must continue to work, and if he pays the full amount while the master is still ill, he is freed.

Mālik also permits a Muslim to place his Christian slave under mukātabah; should that slave default, he is to be sold just as a Muslim slave would be sold according to the same school.

These, then, are the well-known questions connected to the pillars of the contract—that is, the mukātib, the mukātab, and the mukātabah itself.

Legal Rulings of Mukātabah

The legal rulings are numerous, as are the clauses that are valid in this contract and those that are not. The initial categories of rulings may be laid out as follows:
• When does the mukātab become free, and when does incapacity cause him to revert to slavery?
• What is his status if he dies before either emancipation or re-enslavement?
• Who joins him during the term of the contract and who does not?
• Which disabilities of slavery still bind him and which have lapsed?

Let us begin with the well-known rulings that belong to the first of these five categories.

First Category: The point at which the mukātab leaves slavery.

The jurists agree that he is emancipated once he has paid the entire price. They differ, however, about the case in which he becomes unable to pay part of it after having already paid some.

The majority say that he remains a slave so long as any portion of the price is outstanding, and that he reverts to full slavery if he cannot pay the remainder.

From the early generations, apart from this majority view, four other opinions have been transmitted:

1. The mukātab is freed by the contract itself.
2. He gains freedom in proportion to what he has already paid.
3. He is freed once he has paid one-half or more of the price.
4. He is freed upon paying one-third; otherwise he remains a slave.

The majority base their position chiefly on the report recorded by Abū Dāwūd from ‘Amr ibn Shuʿayb, from his father, from his grandfather, that the Prophet—peace and blessings be upon him—