Book of Tadbīr (Deferred Manumission)

The questions that arise with respect to tadbīr are examined under two headings:

1. its constituent elements, and
2. its legal rulings.

I. The constituent elements are four:

1. the underlying concept,
2. the wording,
3. the person who pronounces the tadbīr (the master), and
4. the person in whose favour it is pronounced (the slave, hereafter “the mudabbir”).

II. The legal rulings are of two kinds:
A) rulings that relate to the contract itself, and
B) rulings that relate to the mudabbir.

The First Element

Muslims are unanimously agreed on the permissibility of tadbīr. Tadbīr is for a master to say to his slave, “You are free upon my death,” or more succinctly, “You are a mudabbir.” These are, by consensus, the two explicit formulae of tadbīr.

Conflating Tadbīr and Bequest

With respect to the relationship between tadbīr and a bequest (waṣiyyah), people fall into two groups. One group sees no difference between the two, whereas the other distinguishes them by treating tadbīr as binding and a bequest as non-binding.

Those who differentiate then disagree about the unqualified statement of freedom after death—namely, the master’s words, “You are free after my death.” Does this phrase amount to a bequest, or does it carry the legal force of tadbīr?

• Mālik maintained: If the master is in sound health when he says, “You are free after my death,” the presumption is that it is a bequest; his word on the matter is accepted, and he may retract it unless he explicitly intends tadbīr.

• Abū Ḥanīfah held: The apparent sense of such a statement is tadbīr, and the master has no right to retract it. Ibn al-Qāsim reported Mālik’s view, while Ashhab reported that of Abū Ḥanīfah, adding: A contrary indication may convert it into a bequest—for example, the master’s being on a journey, gravely ill, or in any other situation in which people customarily draft their wills.

Thus, according to those who make no distinction between bequest and tadbīr—such as al-Shāfiʿī and those who follow him—the phrase is one of the explicit formulae of tadbīr. According to those who do distinguish, the phrase is either a figurative expression (kināyah) for tadbīr or neither explicit nor figurative, depending on context. What leads them to regard it as a bequest removes it, in their eyes, from the category of tadbīr expressions; whereas whoever intends tadbīr by it, while framing it as a bequest, counts it among the figurative expressions of tadbīr.

The Mudabbir (the Slave in Whose Favour Tadbīr Is Pronounced)

Scholars agree that any slave in full bondage who is not already related to the master in a way that would automatically confer freedom upon ownership—whether wholly owned or jointly owned—may be made a mudabbir.

Where a person owns only a share of a slave and declares tadbīr for that share, they differ over the ruling:

• Mālik held that this is permissible. The co-owner who did not pronounce tadbīr then has two options:

1. They may mutually value the slave. If the one who pronounced tadbīr purchases the remaining share, the entire slave becomes a mudabbir; if he does not purchase it, the tadbīr is nullified.