Nor does the mukātab revert to slavery merely because he insists that any declaration of incapacity (taʿjīz) be made before the judge, for he would not bring the case to court unless he were also claiming that he has already paid. If the mukātab himself says, “I have become incapable,” his statement is not accepted and he does not return to slavery. A second view maintains that the decision rests with him whenever he has no manifest assets, but that if he does possess visible wealth he may not declare himself incapable. Should he refuse to pay while such property is in plain sight, he can only be declared incapable by a judicial ruling. Yet another position states that he is treated as incapable whenever he declines to pay and pronounces himself so; the first opinion is the view of Mālik.
The master may declare his mukātab incapable without recourse to the authorities unless the mukātab himself objects. In that event the master has no right to declare him incapable except through the ruler, who first grants him a period of grace: if the ruler sees that payment is still possible he leaves him be, and if not he declares him incapable once the respite has passed.
If a man enters into a kitābah with his female slave and stipulates that he may continue to have intercourse with her, the stipulation is void, though the kitābah remains valid. No one is permitted to have intercourse with a female mukātab before she has been declared incapable; if he nevertheless does so, no ḥadd penalty is incurred. Should she become pregnant, she may choose either to become an umm walad (mother of his child) or to remain under her kitābah. If she pays off the contract she is emancipated; if she is declared incapable she does not revert to slavery—her status thereafter is that of an umm walad, gaining freedom upon her owner’s death. If she does not become pregnant, her kitābah simply continues.
After intercourse, if the master claims to have observed a period of istibrāʾ and denies any pregnancy, the child is not ascribed to him; jurists differ as to whether he must swear an oath in this situation.
If, once the kitābah is concluded, he marries her to another man and she bears a child, the child follows the husband and is likewise a mukātab—free when she is freed and a slave if she returns to slavery. The same ruling applies if she commits adultery and gives birth.
If a slave-woman is already pregnant when her kitābah is drawn up, her fetus is included in the contract.
A kitābah may not be made with an umm walad. Should she already be an umm walad, the contract is annulled once that fact is discovered; but if the installments have already been paid in full, the manumission stands and she may not recover anything she had paid to her master.
Contracting a kitābah with a mudabbara (a slave set free upon her owner’s death) is permissible. If she settles the installments before her master dies, she is immediately emancipated.