Mālik’s companions differ over the mukātab’s umm walad when the mukātab dies, leaves sons, and has already paid off his kitāba: is she emancipated or not?

Ibn al-Qāsim says: If she still has one of his children with her, she is set free; otherwise she remains a slave.

Ashhab says: She is freed in every circumstance.

According to al-Shāfiʿī’s basic principle, any wealth the mukātab leaves reverts to the master; the sons may not draw on it to discharge what they themselves owe under the kitāba, whether they were parties to the original contract or were born during its term—they must earn it on their own. On Abū Ḥanīfah’s principle, by contrast, the mukātab is inescapably deemed a free man. Ibn al-Qāsim’s position here appears to be a ruling of istiḥsān (equitable preference).

THE FOURTH CATEGORY

This category examines who is, and who is not, included with the mukātab in the contract of manumission.

All jurists agree that a mukātab’s existing child does not enter his kitāba except by explicit stipulation, for the child is another slave owned by the master. They likewise agree that any child born to him during the term of the kitāba is automatically brought under the same contract. As previously noted, they disagreed about the umm walad.

They also differed on whether the mukātab’s property is included in the kitāba when the contract is left unqualified. Mālik held that his property is indeed encompassed by it; al-Shāfiʿī and Abū Ḥanīfah held that it is not; al-Awzāʿī said that it is included only if the mukātab expressly stipulates it.

The question turns on the broader issue: does a slave possess ownership, and, if so, does his property follow him into freedom? This has been discussed earlier.

THE FIFTH CATEGORY

This section considers the transactions from which the mukātab is still barred, those from which he is not, and the slave-rulings that continue to apply to him. The scholars are unanimously agreed that the mukātab may not give away any significant part of his wealth, nor manumit, nor give charity without his master’s permission; in these and similar matters he remains under interdiction—that is, he may not dispose of anything he owns without receiving compensation.

They nevertheless disagreed over certain sub-cases. One concerns a gift or manumission that the master learns of only after the kitāba has been paid. Mālik and a group of jurists deem the act valid, while others annul it. Those who annul it argue that the transaction occurred during a period in which it was impermissible, rendering it void. Those who validate it reply that the impediment—fear that the slave might default—has disappeared.

Their dispute hinges on whether the master’s permission is a condition for the contract’s very validity or merely for its enforceability. Whoever regards it as a condition of validity invalidates the contract even after emancipation. Whoever treats it as a condition of enforceability rules that it takes effect once the mukātab gains freedom, for the contract was sound at its inception, and when the anticipated permission was no longer required, it became operative as though the master had actually granted it.

All of the foregoing applies to those who say a mukātab may, with his master’s leave, manumit another slave, for the scholars also differed on that point after agreeing that such manumission is impermissible without the master’s permission. Some considered it permissible; others, among them Abū Ḥanīfah, prohibited it, while Mālik held that it is permissible.