Hadith 3446

(1) The statement: “And give them a contract, etc.”: It is stated in Al-Hidayah: This command is not obligatory by consensus among jurists; rather, it is a recommendation, which is the correct view. Interpreting it as permission nullifies the condition, i.e., His saying: if you know there is good in them [An-Nur: 33], because the contract of emancipation is permissible without it. However, the recommendation is tied to it. The meaning of “good” mentioned in His saying: if you know there is good in them [An-Nur: 33], as has been said, is that they will not harm Muslims after emancipation. If they would harm them, it is better not to grant the contract, though it would be valid if the master did so.

(1) The statement: “When Abdul Rahman reaches maturity, if he desires what you desired, he may emancipate; otherwise, he guarantees you”: This means if a slave is shared between two men and one emancipates his share, Abu Yusuf and Muhammad said: The slave is entirely free, and if the emancipator is solvent, he guarantees the value of the partner’s share; if insolvent, the slave works. They said: He only has the guarantee with solvency or work with insolvency, and the emancipator does not revert to the slave, with patronage belonging to the emancipator. Shafi‘i said: If the emancipator is solvent, he guarantees his partner, and the emancipation is not partial. If insolvent, the emancipation is partial, and he does not uphold work; instead, the other partner uses him one day and leaves him the next forever, meaning Shafi‘i’s view on the solvent aligns with theirs. For the insolvent, the silent partner’s share remains his, to be sold or gifted. Abu Hanifah said: If a master emancipates part of his slave, that portion is freed, and he works for the remaining value for his master. If the slave is shared between two partners and one emancipates his share, it is freed. If solvent, the partner has the choice: he may emancipate, guarantee the emancipator the value of his share, or make the slave work. If he guarantees, the emancipator reverts to the slave, and patronage is for the emancipator. If he emancipates or makes him work, patronage is shared. If the emancipator is insolvent,.Concurrent Assistant: the partner has the choice: he may emancipate or make the slave work, and patronage is shared in both cases, i.e., emancipation or work. This is based on two principles: one, whether emancipation can be partial or not; two, whether the emancipator’s solvency prevents work. For Abu Hanifah, it does not prevent work; for the two, it does. In summary: emancipation is partial in all cases for Abu Hanifah, not partial in any case for his two companions, and for Shafi‘i, it is partial in some cases but not others. The correct view is the Imam’s, as stated in Qahastani from Al-Mudmarat, and Qasim confirmed its correctness from the authorities of verification, supported in Fath Al-Qadir by meaning and narration, including the hadith in the two Sahihs: “Whoever emancipates his share in a slave, if he has wealth to cover the slave’s value, he is valued justly, gives his partners their shares, and the slave is freed; otherwise, only what was emancipated is freed,” indicating partial emancipation, which supports Abu Hanifah. Nawawi said the hadiths align with Shafi‘i. I say: How, when Shafi‘i took the hadith of guarantee and ignored the hadith of work despite its authenticity? Fairness, in terms of hadith, is what Tahawi said, choosing the view of the two companions. I say: Abu Hanifah’s position is strong in jurisprudence, as emancipation entails the guarantee and work mentioned in the hadiths. Bukhari agreed with Abu Hanifah from start to finish. Among Abu Hanifah’s proofs is this narration of Umar narrated by Tahawi, who said: In this narration, Abdul Rahman, after reaching maturity, could emancipate his share of the slave already partially emancipated by his mother and brother. Abu Hanifah (may Allah be pleased with him) said: Since he could emancipate by paying it without compensation, he could take the slave by paying the value of what remained, so it is freed by paying it. Since the non-emancipator could emancipate his share, the emancipating partner who guaranteed reverts to the guaranteed amount from the slave, so he must make the slave work for the value of what his partner had, and for what his partner could make him work. The hadith of work will be verified later in this chapter. In Arf Ash-Shadhi, it is said: Our Imam Abu Hanifah has two authentic hadiths, one in Abdul Razzaq’s Musannaf and the other in Ahmad’s Musnad, with trustworthy narrators, and one was authenticated by a preserver among preservers. This is gathered from Arf Ash-Shadhi, Al-Hidayah, commentaries of Al-Kanz, Ad-Durr Al-Mukhtar, Radd Al-Muhtar, and Sharh Ma‘ani Al-Athar.

(2) The statement: “Then made to work, etc.”: Work, for us, means hiring him out and taking half his value from the wage. Some Shafi‘is said work means he serves his master one day and is free the next, forever. I say: This contradicts “valued justly, etc.,” and we have this hadith, so work is established. Ibn Hazm said thirty Companions confirmed work, and nothing in their narrations contradicts our position; rather, it supports what we say, as it says in a hadith: “If solvent, he is valued, then freed,” and “then” indicates delay, meaning he is freed afterward, either by emancipation or work. Another hadith says: “He gave his partners their shares and freed,” with “and” not negating sequence or delay, so we interpret it for reconciliation. However, the apparent hadith of work supports the two companions that the slave is not made to work for the remaining share if the emancipator is solvent, meaning capable of paying the other’s share value, as the hadith’s wording indicates: “If he has wealth to cover his value.” But its support for them depends on considering the opposite implication, i.e., “If he has no wealth, valued justly, then made to work,” implying no work if he has wealth. You know our three scholars did not accept the opposite implication, so how can they establish their aim with it? This is gathered from Al-Mirqat, Arf Ash-Shadhi, commentaries of Al-Kanz, and Al-Kawkab Ad-Durri.

(3) The statement: “Ordered him to work for the two-thirds, so work is established”: The hadith of lots, for us, applies to the early days of Islam before lots were abrogated by the prohibition of gambling, so that ruling was lifted. This is taken from Badhl Al-Majhud. Abu Hanifah said: Each one’s share is freed, and he works for the rest, with his evidence being Abdul Razzaq’s hadith. This is gathered from Al-Mirqat.