predicament of an Am-Walid; for it is the offspring of an Am-
Walid, and confequently partakes of her priviledges as a dependant
of her.
tenAmWalld JF a mafter enter into a contra of K it abat may with his Am-Walid, it be con- # >
flitutcd a Mo- is lawful ; becaufe (he is here defirous of obtaining her freedom before
the deceafe of her mafter, and this end is obtained by means of a cont
r a t of Kitàbat : neither is her being an Am-Walid at all repugnant
to the contrat of Kitàbat, fince both thofe means of freedom may
unite in her, and fhe may obtain her freedom, in virtue of the one
immediately, by the payment of her ranfom,— or, in virtue of the
other, after a delay, independant of ranfom.— The contrafl in queftion
is therefore valid.— But if her mafter afterwards die, fhe becomes free
in virtue of being an Am Walid, as her freedom was fufpended upon
his deceafe :—and in this cafe fhe is excufed from the ranfom; becaufe
her defign, in entering into the contract, and engaging for a ranfom,
was merely to procure her freedom upon paying it ; but as fhe here
becomes free before having paid it, it is impoffible for her to acquire
freedom upon paying it, fince a thing already obtained cannot be
obtained again.— Her ranfom therefore drops, and the contrail of
Kitàbat becomes null, as its continuance is in this cafe ufelefs.
O b j e c t i o n .— As the contrail of Kitàbat is annulled and broken
off by the mafter’s deceafe, it would follow that the acquifitions of the
MokAtibà, together with the children not begotten by her mafter, and
born during the Kitàbat, appertain to the mafter’s eftate;— whereas
it is not fb.
R e p l y .— T h e contrail of Kitàbat is annulled with refpeil to the.
ranfom, but remains in force with refpeil to the acquifitions and children
of the Mokdtiba ; becaufe the annulment of the contrail is out of
tendernefs to her intereft, ' which is obferved in annulling it with refpeil
to the ranfom, but not with refpeil to thofe other particulars,
for if it were annulled with refpeil to them, it would, follow that they
became the property of the mafter’s heirs.
I f
If a perfon enter into a contrail of K it ah at with his Modabbirh, it
is lawful, for the reafon affigned in the preceding example, that “ fhe
“ is defirous of obtaining her freedom before the deceafe of her
“ mafter:” — neither is her being a Modabbirh repugnant to the contrail
of Kitabat; for fhe is not, in virtue of Tadbeer, free at prefent,
but is merely endowed with a right to ultimate freedom, upon the deceafe
of her owner. If, in this inftance, the mafter die, leaving no
property except the Modabbirh in queftion, fhe has it at her option to
perform emancipatory labour, either for two thirds of her eftimated
value, or for the whole of her ranfom. This is according to Haneefa.
Aboo Toofaf holds that fhe is to perform emancipatory labour to a
degree equivalent to the leaft of the two. — Mohammed maintains
that fhe is to perform emancipatory labour to the amount
o f what is leaft, two thirds of her value, or two thirds of her
ranfom. Thus there is a difference of opinion with refpedl both to
the amount and the option ; and Aboo Toofcf coincides with Haneefa in
regard to the one, and with Mohammed in regard to the other. The
right of option, in this inftance, is derived from the divisibility of
manumiffion, as maintained by Haneefa', becaufe as (according to
him) manumiffion admits of being divided into parts, one third of the
Modabbirh becomes free on the inftant, and two thirds continue in
bondage;— and as two caufes of manumiffion operate, with refpect to
the other two thirds, for two different confiderations, (one of which
is of immediate effedl, in virtue of Tadbeer, and the other of deferred
effedt, in virtue of Kitabat,) the Modabbirh has therefore an option of
either. According to the two difciples, on the contrary, manumiffion
is indivifible. Hence the whole of the Modabbirh is free in consequence
of a part of her being fo ; and fhe, as being confequently free,
owes one of the two confiderations, of which She will undoubtedly
prefer paying that which is the fmallefi; Her having an option is
therefore ufelefs.— With refpedl to the point on which Mohammed
differs both from Haneefa and from Aboo Toofaf, namely the amount,
the argument he urges is that the mafter had oppofed the whole ran-
fom to the whole of the Modabbirh's perfon; but fhe has already fecured
A n d th e fam e
o f a M o d a b -
b ird .