The second option is for the partner to have the slave appraised to his co-owner.
Abū Ḥanīfah said: The partner who did not pronounce tadbīr has three options. If he wishes, he may retain his share; if he wishes, he may require the slave to earn the price of that share; and if he wishes, he may appraise it against his partner, provided the partner is solvent. If the partner is insolvent, the slave must work to pay the price.
Al-Shāfiʿī said: Tadbīr is valid, yet none of the foregoing becomes obligatory. The mudabbir slave therefore remains half-owned, one-third-owned, or whatever the proportion may be. When his owner dies, that proportion is set free, and the remainder is not appraised against the deceased’s estate as is done in the Sunnah of manumission, because the property has already passed to others—namely, the heirs. This issue falls under legal rulings, not constituent elements (that is, it concerns the rulings that apply to the mudabbir), and should accordingly be recorded under rulings.
As for the person who declares tadbīr, the jurists agree that he must be a full owner who is not legally interdicted, whether he is healthy or ill. They also agree that he must not be someone whose wealth is overwhelmed by debt, for debt nullifies tadbīr. They differ, however, regarding the tadbīr pronounced by a spendthrift. These are the constituent elements of this chapter.
Its rulings, in turn, are reducible to five categories:
- From which part of the estate is the mudabbir’s price to be taken—out of the entire estate or out of the one-third allotted for bequests?
- Which aspects of bondage continue to apply to him, and which do not, for as long as he remains a mudabbir?
- What follows him into freedom and what does not.
- Events that subsequently nullify tadbīr.
- The rulings on partial tadbīr.
Category One: From which source is the mudabbir’s price discharged when the owner dies? The scholars have differed. The majority hold that it comes out of the one-third, while another group—chiefly the Ẓāhirīs—say it comes out of the capital estate.
Those who place it in the one-third liken it to a bequest, for it is a ruling that takes effect after death. A ḥadīth has been transmitted from the Prophet—may Allah bless him and grant him peace—stating, “The mudabbir is to be taken from the one-third,” but the specialists in ḥadīth deem the report weak, for it is narrated by ʿAlī ibn Ẓubyān from Nāfiʿ from ʿAbd Allāh ibn ʿUmar, and ʿAlī ibn Ẓubyān is considered unreliable.
Those who hold that it comes out of the capital estate liken it to something a person disposes of during his lifetime, making it resemble a gift.
The proponents of the one-third view then disagree on certain details: Suppose, while in sound health, a man declares tadbīr for one male slave, and later—during the illness from which he dies—emancipates another slave, so that the one-third cannot cover both. Mālik said: precedence is given