Judgements

Yahya said that Malik related from Ibn Shihab that Sunayn AbiJamila, a man from the Banu Sulaym, found an abandoned child in thetime of Umar ibn al-Khattab. Sunayn took him to Umar ibn al-Khattab.He asked, "What has induced you to take this person?" He answered, "Ifound him lost, so I took him.'' Umar's advisor said to him,' 'Amiral-Muminin! He is a man who does good." Umar inquired of him, "Is itso?" He replied, "Yes." Umar ibn al-Khattab said, "Go, he is free, andyou have his wala' inheritance, and we will provide for him."

Yahya said that he heard Malik say, "What is done in our communityabout an abandoned child is that he is free, and his wala' inheritancebelongs to the muslims, and they inherit from him and pay his bloodmoney."

Yahya said from Malik from Ibn Shihab from Urwa ibn az-Zubayrthat A'isha, the wife of the Prophet, may Allah bless him and granthim peace, said, ''Utba ibn Abi Waqqas disclosed to his brother, Sadibn Abi Waqqas, that he was the father of the son of the slave-girl ofZama, and made him promise to look after him (after his death). In theyear of the conquest, Sad took him and said, 'He is the son of mybrother. He covenanted with me about him.' Abd ibn Zama stood up andsaid, 'He is my brother and the son of my father's slave-girl. He wasborn on his bed.' They went to the Messenger of Allah, may Allah blesshim and grant him peace. Sad said, 'Messenger of Allah! He is the sonof my brother, he made a covenant with me about him.' Abd ibn Zamasaid, 'He is my brother and the son of my father's slave-girl and wasborn on my father's bed.' The Messenger of Allah, may Allah bless himand grant him peace, said, 'He is yours, Abd ibn Zama.' Then theMessenger of Allah, may Allah bless him and grant him peace, said, 'Achild belongs to the household (where he was born) and the adultereris stoned.' Then he told Sawda bint Zama, 'Veil yourself from him,'since he saw in him a resemblance to Utba ibn Abi Waqqas." A'ishaadded, "He did not see her until he met Allah, the Mighty, theMajestic!"

Malik related to me from Yazid ibn Abdullah ibn al-Hadi fromMuhammad ibn Ibrahim ibn al-Harith at-Taymi from Sulayman ibn Yasarfrom Abdullah ibn Abi Umayya that a woman's husband died, and she didthe idda of four months and ten days. Then she married when she wasfree to marry. She stayed with her husband for four and a half months,then gave birth to a fully developed child. Her husband went to Umaribn al-Khattab and mentioned that to him, so Umar called some of theold women of the Jahiliyya and asked them about that. One of the womensaid, "I will tell you what happened with this woman. When her husbanddied, she was pregnant by him, but then the blood flowed from herbecause of his death and the child became dry in her womb. When hernew husband had intercourse with her and the water reached the child,the child moved in the womb and grew." Umar ibn al-Khattab believedher and separated them (until she had completed her idda). Umar said,"Only good has reached me about you two," and he connected the childto the first husband.

Malik related to me from Yahya ibn Said from Sulayman ibn Yasarthat Umar ibn al-Khattab used to attach the children of the Jahiliyyato whoever claimed them in Islam. Two men came and each of themclaimed a woman's child. Umar ibn al-Khattab summoned a person whoscrutinized features and he looked at them. The scrutinizer said,"They both share in him." Umar ibn al-Khattab hit him with a whip.Then he summoned the woman, and said, "Tell me your tale." She said,"It was this one (indicating one of the two men) who used to come tome while I was with my people's camels. He did not leave me until hethought and I thought that I was pregnant. Then he left me, and bloodflowed from me, and this other one took his place. I do not know fromwhich of them the child is." The scrutinizer said, "Allah is greater."Umar said to the child, "Go to whichever of them you wish."

Yahya said that he heard Malik say, "The way of doing thingsgenerally agreed upon in our community in the case of a man who diesand has sons and one of them claims, 'My father confirmed that so-and-so was his son,' is that the relationship is not established by thetestimony of one man, and the confirmation of the one who confirmed itis only permitted as regards his own share in the division of hisfather's property. The one testified for is only given his due fromthe share of the testifier."

Malik said, "An example of thisis that a man dies leaving two sons, and 600 dinars. Each of themtakes 300 dinars. Then one of them testifies that his deceased fatherconfirmed that so-and-so was his son. The one who testifies is obligedto give 100 dinars to the one thus connected. This is half of theinheritance of the one thought to be related, had he been related. Ifthe other confirms him, he takes the other 100 and so he completes hisright and his relationship is established. His position is similar tothat of a woman who confirms a debt against her father or her husbandand the other heirs deny it. She must pay to the person whose debt sheconfirms, the amount according to her share of the full debt, had itbeen confirmed against all the heirs. If the woman inherits an eighth,she pays the creditor an eighth of his debt. If a daughter inherits ahalf, she pays the creditor half of his debt. Whichever women confirmhim, pay him according to this.

Malik said, "If a man'stestimony is in agreement with what the woman testified to, that so-and-so had a debt against his father, the creditor is made to take anoath with one witness and he is given all his due. This is not theposition with women because a man's testimony is allowed and thecreditor must take an oath with the testimony of his witness, and takeall his due. If he does not take an oath, he only takes from theinheritance of the one who confirmed him according to his share of thedebt, because he confirmed his right and the other heirs denied it. Itis permitted for him to confirm it."

Yahya said that Malik related from Ibn Shihab from Salim ibnAbdullah ibn Umar from his father that Umar ibn al-Khattab said,"What's the matter with men who have intercourse with their slave-girls and then dismiss them? No slave-girl comes to me whose masterconfesses that he has had intercourse with her but that I connect herchild to him, whether or not he has practised coitus interruptus orstopped having intercourse with her."

Malik related to me from Nafi that Safiyya bint Abi Ubaydinformed him that Umar ibn al-Khattab said, "What is the matter withmen who have intercourse with their slave-girls and then leave them togo? No slave-girl comes to me whose master confesses that he has hadintercourse with her but that I connect her child to him, whether ornot he has practised coitus interruptus or left off from intercoursewith her."

Yahya said that he heard Malik say, "What is donein our community about an umm walad who commits a crime is that hermaster is liable for what she has done up to her value. He does nothave to surrender her, and he cannot be made to bear more than hervalue for her crime."

Yahya related from Malik from Hisham ibn Urwa from his fatherthat the Messenger of Allah, may Allah bless him and grant him peace,said, "If anyone revives dead land, it belongs to him, and the unjustroot has no right."

Malik explained, "The unjust root iswhatever is taken, or planted without right."

Malik related to me from Ibn Shihab from Salim ibn Abdullah fromhis father that Umar ibn al-Khattab said, "Whoever revives dead land,it belongs to him."

Malik said, "That is what is done in ourcommunity."

Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnMuhammad ibn Amr ibn Hazm that he heard that the Messenger of Allah,may Allah bless him and grant him peace, said about the flood-channelsof Mahzur and Mudhaynib (in Madina), "Dam them systematically, so thatthe water is diverted into each property in turn up to ankle level,starting upstream."

Malik related to me from Abu'z-Zinad from al-Araj from AbuHurayra that the Messenger of Allah, may Allah bless him and grant himpeace, said, "Excess water is not withheld in order to prevent herbagefrom growing."

Malik related to me from Abu'r-Rijal Muhammad ibn Abd ar-Rahmanfrom his mother Amra bint Abd ar-Rahman that she informed him that theMessenger of Allah, may Allah bless him and grant him peace, said, "Donot withhold the surplus water of a well from people."

Yahya related to me from Malik from Amr ibn Yahya al-Mazini fromhis father that the Messenger of Allah, may Allah bless him and granthim peace, said, "There is no injury nor return of injury."

Malik related to me from Ibn Shihab from al-Araj from Abu Hurayrathat the Messenger of Allah, may Allah bless him and grant him peace,said, "No one should prevent his neighbour from fixing a wooden peg inhis wall." Then Abu Hurayra said, "Why do I see you turning away fromit? By Allah! I shall keep on at you about it."

Malik related to me from Amr ibn Yahya al-Mazini from his fatherthat ad-Dahhak ibn Khalifa watered his irrigation ditch from a largesource of water. He wanted to have it pass through the land ofMuhammad ibn Maslama, and Muhammad refused. Ad-Dahhak said to him,"Why do you prevent me? It will benefit you. You can drink from itfirst and last and it will not harm you." Muhammed refused so ad-Dahhak spoke about it to Umar ibn al-Khattab, and Umar ibn al-Khattabsummoned Muhammad ibn Maslama and ordered him to clear the way.Muhammad said, "No." Umar said, "Why do you prevent your brother fromwhat will benefit him and is also useful for you? You will take waterfrom it first and last and it will not harm you."

Muhammadsaid, "No, by Allah!" Umar said, "By Allah, he will pass it through,even if it is over your belly!" Umar ordered him to allow its passageand ad-Dahhak did so.

Malik related to me from Amr ibn Yahya al-Mazini that his fathersaid, "There was a stream in my grand-father's garden belonging to Abdar-Rahman ibn Awf Abd ar-Rahman ibn Awf wanted to transfer it to acorner of the garden nearer to his land, and the owner of the gardenprevented him. Abd ar-Rahman ibn Awf spoke to Umar ibn al-Khattababout it, and he gave a judgement to Abd ar-Rahman ibn Awf that heshould transfer it."

Yahya related to me from Malik that Thawr ibn Zayd ad-Dili said,"I heard that the Messenger of Allah, may Allah bless him and granthim peace, said, 'A house or land that has been divided in theJahiliyya, it is according to the division of the Jahiliyya. A houseor land which has not been divided before the coming of Islam isdivided according to Islam.' "

Yahya said that he heard Malik speak about a man who died andleft properties in Aliya and Safila (outlying districts of Madina). Hesaid, "Unirrigated naturally watered land is not in the same categoryas irrigated land unless the family are satisfied with that.Unirrigated land is only in the same category as land with a springwhen it resembles it. When the properties are in one land, and areclose together, each individual property is evaluated and then dividedbetween the heirs. Dwellings and houses are in the same position."

Yahya related to me from Malik from Ibn Shihab from Haram ibn Sadibn Muhayyisa that a female camel of al-Bara ibn Azib entered thegarden of a man and it did some damage to it. The Messenger of Allah,may Allah bless him and grant him peace, gave a judgement that thepeople of the garden were responsible for guarding it in the day, andthe owner of the animals was liable for what the animals destroyed atnight.

Yahya said that he heard Malik say, "If a man buys a garmentwhich has a defect, a burn or something else, which the seller knowsabout and that is testified against him or he confirms it, and the manwho has bought it causes a new tear which decreases the price of thegarment, and then he learns about the original defect, he can returnit to the seller and he is not liable for his tearing it.

"Ifa man buys a garment which has a defect of a burn or flaw, and the onewho sold it to him claims that he did not know about it, and the buyerhas cut the garment or dyed it, then the buyer has an option . If hewishes, he can have a reduction according to what the burn or flawdetracts from the price of the garment and he can keep the garment, orif he wishes to pay damages for what the cutting or dyeing hasdecreased of the price of the garment and return it, he can do so.

"If the buyer has dyed the garment with a dye which increasesthe value, the buyer has an option. If he wishes, he has a reductionfrom the price of the garment according to what the defect diminishesor if he wishes to become a partner with the one who sold the garmenthe does so. The price of the garment with a burn or flaw is looked at.If the price is ten dirhams, and the amount by which the dyeingincreased the value is five dirhams, then they are partners in thegarment, each according to his share. In this reckoning is the amountby which the dyeing increases the price of the garment."