The eventual separation that the contract entails makes such intercourse resemble a marriage concluded for a fixed term. The second group’s chief argument is to liken the female mukātab to a mudabbara slave; and they all agree that if she becomes unable to meet her payments, intercourse with her again becomes lawful.

Those who forbid the act disagree over the legal consequence when it does occur: is the ḥadd penalty incurred or not? The majority hold that no ḥadd is due, because the intercourse takes place under a doubtful circumstance; others maintain that the ḥadd must be applied.

They also differed as to whether she is entitled to a bridal-gift (ṣadāq). So far as I know, the scholars are unanimous that, in all its legal consequences, the mukātab remains subject to the rulings applicable to a slave—matters such as divorce, testimony, ḥadd penalties, and the like, which pertain specifically to slaves.

Within the same discussion they disputed his sale. The majority say that a mukātab may not be sold unless the buyer undertakes to keep him on the same kitāba terms. Others permit his sale provided he has not yet paid anything toward the contract, citing the case of Barīrah, who was sold before remitting any instalment. A third opinion—al-Shāfiʿī’s—holds that if the mukātab consents to being sold, the sale is valid, because the kitāba, in his view, is not binding on the slave; he, too, relies on the report of Barīrah’s sale while she was still a mukātab.

Those who disallow the sale argue that it breaches a covenant which God, Exalted is He, has commanded us to honour; thus the whole issue turns on whether the kitāba is a binding contract.

They likewise disagreed over selling the kitāba debt itself. Al-Shāfiʿī and Abū Ḥanīfah declared it impermissible; Mālik allowed it and granted the mukātab the right of pre-emption (shufʿa) in such a sale. Those who permit it compare the transaction to selling a debt, whereas those who forbid it regard it as gharar (excessive uncertainty).

Mālik further likened the right of pre-emption here to pre-emption in a debt, and on that point there is an athar traced to the Prophet—peace and blessings be upon him—concerning pre-emption in a debt.

Mālik’s view on selling the kitāba is that, if its price is stated in gold, it may be exchanged only for merchandise delivered immediately, not for another deferred liability, so as to avoid “a debt for a debt.” If the kitāba is denominated in merchandise, it may be purchased with gold or silver paid on the spot, or with different merchandise; and when the slave is finally emancipated, the walāʾ belongs to the mukātab, not to the buyer.

Another related question is whether the master may compel the slave to enter into a kitāba contract.

Conditions of Kitāba

The conditions governing kitāba are of two kinds. First are legal requirements essential to the contract’s validity—these have already been mentioned when the pillars of kitāba were discussed. Second are conditions agreed to by the two parties. Among these are:
• conditions that invalidate the contract outright;
• conditions that, if insisted upon, invalidate it, but if waived, allow it to stand;
• permissible yet non-binding conditions; and
• conditions that are both permissible and binding.
All of this is treated at length in the detailed books of fiqh; the present work is concerned with legal principles rather than subsidiary rulings.

In general, those stipulations that contradict the divinely prescribed conditions of validity vitiate the contract. Permissible conditions are those that neither undermine nor are inseparable from the conditions that validate the contract. On this overarching principle the jurists are agreed; their disagreement concerns which particular stipulations belong to the category of conditions of validity—an issue that varies according to how closely or remotely a given condition approaches undermining the contract.