Setting Free and Wala'

Malik related to me from Yahya ibn Said from Amra bint Abd ar-Rahman that Barira came asking the help of A'isha, umm al-muminin.A'isha said, "If your masters agree that I pay them your price in onelump sum and set you free I will do it." Barira mentioned that to hermasters and they said, "No, not unless your wala' is ours." Yahya ibnSaid added that Amra bint Abd ar-Rahman claimed that A'isha mentionedthat to the Messenger of Allah, may Allah bless him and grant himpeace, and the Messenger of Allah, may Allah bless him and grant himpeace said, "Buy her and set her free. The wala' only belongs to theone who sets free."

Malik said that it was not permissible for a slave to buy himself from his master on the provision that he could give the wala' to whomever he wished as the wala' was for the one who set him free, and that had a man given permission to his mawla to give the wala' to whomever he wished, that would not have been permitted, because the Messenger of Allah, may Allah bless him and grant him peace, had said, "The wala' is for the one who sets free. " The Messenger of Allah, may Allah bless him and grant him peace, forbade selling or giving away the wala'. For if it was permitted to the master to stipulate that for him and to give him permission to give the wala' to whomever he liked, that would be a gift.

Malik related to me that he had heard that Said ibn al-Musayyab was asked who had the wala' of the children whom a slave had by a free woman. Said said, "If their father dies and he is a slave who was not set free, their wala' belongs to the mawali of their mother."

Malik said, "That is like the child of a woman who is a mawla who has been divorced by lian; the child is attached to the mawali of his mother and they are his mawali. If he dies, they inherit from him. If he commits a crime, they pay the blood-money for him. If his father acknowledges him, he is given a kinship to him and his wala' goes to the mawali of his father. They are his heirs, they pay his blood-money and his father is punished with the hadd-punishment."

Malik said, "It is like that with a free-born woman divorced by lian. If her husband who curses her by lian does not acknowledge her child, the child is dealt with in the same way except that the rest of his inheritance after the inheritance of his mother and his brothers from his mother goes to all the muslims as long as he was not given kinship to his father. The child of the lian is attached to the patronage of the mawali of his mother until his father acknowledges him because he does not have a lineage or paternal relations. If his lineage is confirmed, it goes to his paternal relations."

Malik said, "The generally agreed-on way of doing things among us about a child of a slave by a free woman, while the father of the slave is free, is that the grandfather (the father of the slave), attracts the wala' of his son's free children by a free woman. They leave their inheritance to him as long as their father is a slave. If the father becomes free, the wala' returns to his mawali. If he dies and he is still a slave, the inheritance and the wala' go to the grandfather. If the slave has two free sons, and one of them dies while the father is still a slave, the grandfather, the father of the father, attracts the wala' and the inheritance."

Malik spoke about a slave-girl who was set free while she was pregnant and her husband was a slave and then her husband became free before she gave birth, or after she gave birth. He said, "The wala' of what is in her womb goes to the person who set the mother free because slavery touched the child before the mother was set free. It is not treated in the same way as a child conceived by its mother after she has been set free because the wala' of such a child, is attracted by the father when he is set free."

Malik said that if a slave asked his master's permission to free a slave of his and his master gave permission, the wala' of the freed slave went to the master of his master, and his wala' did not return to the master who had set him free, even if he were to become free himself."

Malik related to me from Abdullah ibn Abi Bakr ibn Muhammad ibnAmr ibn Hazm from Abd al-Malik ibn Abi Bakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham that his father told him that al-Asi ibn Hisham haddied and left three sons, two by one wife and one by another wife. Oneof the two with the same mother died and left property and mawali. Hisfull brother inherited his property and the wala' of his mawali. Thenhe also died, and left as heirs his son and his paternal half brother.His son said, "I obtain what my father inherited of property and thewala' of the mawali." His brother said, "It is not like that. Youobtain the property. As for the wala' of the mawali, it is not so. Doyou think that had it been my first brother who died today, I wouldnot have inherited from him?" They argued and went to Uthman ibnAffan. He gave a judgement that the brother had the wala' of themawali.

Malik related to me from Abdullah ibn Abi Bakr ibn Hazm that hisfather told him that he was sitting with Aban ibn Uthman, and anargument was brought to him between some people from the Juhayna tribeand some people from the Banu al-Harith ibn al-Khazraj. A woman of theJuhayna tribe was married to a man from the Banu al-Harith ibn al-Khazraj, called Ibrahim ibn Kulayb. She died and left property andmawali, and her son and husband inherited them from her. Then her sondied and his heirs said, "We have the wala' of the mawali. Her sonobtained them." Those of the Juhayna said, "It is not like that. Theyare the mawali of our female associate. When her child died, we havetheir wala' and we inherit them." Aban ibn Uthman gave a judgementthat the people from the Juhayna tribe did indeed have the wala' ofthe mawali.

Malik related to me that he had heard that Said ibn al-Musayyabspoke about a man who died and left three sons and left mawali whom hehad freed. Then two of his sons died and left children. He said, "Thethird remaining son inherits the mawali. When he dies, his childrenand the children of his brothers share equally in the wala' of themawali."

Malik related to me that he had asked Ibn Shihab about a slavewho was released. He said, "He gives his wala' to whomever he likes.If he dies and has not given his wala' to anyone, his inheritance goesto the muslims and his blood-money is paid by them."

Maliksaid, "The best of what has been heard about a slave who is releasedis that no one gets his wala', and his inheritance goes to themuslims, and they pay his blood-money."

Malik said that whenthe slave of a jew or christian became muslim and he was freed beforebeing sold, the wala' of the freed slave went to the muslims. If thejew or christian became muslim afterwards, the wala' did not revert tohim. "

He said, "However, if a jew or christian frees a slavefrom their own deen, and then the freed one becomes muslim before thejew or christian who freed him becomes muslim and then the one whofreed him has become muslim, his wala' reverts to him because thewala' was confirmed for him on the day he freed him."

Maliksaid that the muslim child of a jew or christian inherited the mawaliof his jewish or christian father when the freed mawla became muslimbefore the one who freed him became muslim. If the freed one wasalready muslim when he was freed, the muslim children of the christianor jew had nothing of the wala' of a muslim slave because the jew andthe christian did not have the wala'. The wala' of a muslim slave wentto the community of muslims.