to declare incapacity while the slave objects, or the converse—namely, the master wishes the contract to remain in force whereas the slave asks to be declared incapable.
If both master and slave agree to declare incapacity, the matter falls into two further situations.
First: a child may either have been included in the mukātaba or not. Should a child be part of the contract, there is, according to Mālik, no disagreement that declaring incapacity is impermissible.
If no child is involved, two reports exist. One—also held by Abū Ḥanīfah—states that incapacity may not be declared so long as the slave possesses any property; the other allows such a declaration.
Should the slave request to be declared incapable while the master refuses, the slave’s request is not granted if he has money or the strength to earn.
Conversely, if the master seeks to declare incapacity and the slave refuses, the master may not do so without a judicial ruling, and only after he proves before the judge that the slave has neither wealth nor the ability to pay.
The dispute ultimately turns on each school’s principal evidences.
Al-Shāfiʽī’s chief proof is the report that Barīrah came to ʽĀʾishah saying, “I would like you to buy me and set me free.” ʽĀʾishah replied, “If your people agree.” Barīrah’s owners then came and sold her even though she was a mukātabah. Al-Bukhārī recorded the ḥadīth.
The Mālikīs’ cornerstone is their analogy between the mukātaba and contracts that are inherently binding: the legal status of the slave must mirror that of the master, for contracts are by nature either binding or subject to option equally for both parties. To make a contract binding upon one side yet optional for the other departs from established principles. They further explain the ḥadīth of Barīrah by saying that what her owners sold was her contract, not her very person.
The Ḥanafīs argue that because the predominant right in a mukātaba lies with the slave, the contract must therefore be binding upon the other, subordinate party—namely, the master. They draw an analogy with marriage: it is not binding on the husband, who holds the right of divorce, yet it is binding on the wife. The Mālikīs counter that marriage is nonetheless binding with respect to the consideration exchanged, for the husband cannot reclaim the dowry.
Third Category: the ruling if the mukātab dies before completing payment. All agree that if he dies childless without having paid anything, he reverts to slavery. They differ, however, when he dies leaving children.
Mālik said: his children are treated exactly as he would have been. If he leaves property sufficient to cover the contract, they pay it and are emancipated. If he leaves no property but are capable of earning, they remain bound by their father’s instalments until they either become incapable or are freed. Should they possess neither wealth nor the ability to earn, they revert to slavery. If, after settling the mukātaba, any surplus remains from his estate, they inherit it according to the rules governing free persons. No one else inherits from him except those children who were included with him in the mukātaba, to the exclusion of all other potential heirs.