A Mokatibd
may becon-
flituted a Mo-
dabbira.
cured tp he jlflf one third.of".the .whole in yhtvie^ ^ adbeer, and it is
confequently impofiible that any ranfom ihould be due for that third;
for. .as, if Ihe had fecured her.whole perfen to herfelf, by .that confti-
tuting only a third of the deceafed’s property, the whole .of her npibra.
would have been remitted, it.follows that one third is remitted in the
prefent inftanpe;— in the.fame,manner as where a mafter. firft makes
his Have a Mokatib, and then_grants him Tadbeer,— in which cafe one
tlyrd of his, ranfom is remitted,— and fo likewife.in the cafe in quef-
tipn.— T h e argument o f the, two. E(dprs. is that the .whole o f the Kitd-
bat is oppofed to two thirds of the .Modabbirct,,. and .confequeptly no
part of it can be.remifted, T h e .gropnd of this is that, the rg.pfom,.
although .it be.oppofed to thewloole of the Modabbirct in regard ,both
to appearance and \letter, is neverthelefs refixidted ,to two thirds,of her
in regard to reality and dejign; becaufe (he has already become,, in appearance,
entitled to the freedom of onp third of her perfon; and it is
evident that men do not engage for property, as oppofed to a thing to
the freedom of which they ar,e already entitled;— as, for inftance, if
a perfon pronounce two divorces upon his wife, and afterwards; agree
“ to give her three divorces for one thoufand d ir m s the whole thou-
faiid are oppofed to. the one remaining divorce required to makp.up that
number, becaufe apparent circumftances argue that fuph is his defign,
lince only one divorce remains to be given ;— and fo likewife in. the
prefent inftance.— It is otherwife where a mafter firft creates his Have
a Mokatiba, and afterwards grants her ‘Tadbeer, for in that cafe the
ranfom was oppofed to her whole perfon, as Ihe was not at the time of
concluding the contract of Kitabat, entitled to the freedom of any part
of her perfon.— There is therefore an evident difference between the
cafes.
If a perfon grant cfadbeer to his Mokdtibei, it is lawful; becaufe
fhe Hands in need of freedom; and her becoming a Modabbira is not
repugnant to the contract of Kitabat, as was before ftated. In this
cafe the Have has it at her option either to adhere to the contra ft of
Kitabat, or to incapacitate herfelf from paying ranfom, and to be-
2 come
come, a Modabbira, becaufe a coftfraft: of Kitabat is iAot bindingfen the
part’ of a Have*. * If, 'IherëFóïeJ1 fhe adhere to the'tdritf£&,v,"'ahd her
mafter die,' and leave' no 'property befides, fhe'hds it at her’optibn to
perform emancipatory labour ‘ either'for' two thirds of her fanfom, or
for two thirds of her effimated’value.— This'isJ'aecbrding 'ih lHakVéfa.
The two difciples maintain that ‘fhe has'no option,1 but is to perform
emancipatory labour for that which the'leaft’ o f the two. Thus the
difference, in this'cafe, cóheerfts'ónly th e 'bptidb, in c'ortfequéhcé! of
that being derived '(according to Haneefa)‘ from thfe divifibility o’f rna-
niimiflron, as béfore fet fotthf For they all agree’concerning- the
amount, fince iii thiS'inftance the ranfom is’oppofed-to the whole o f the
flave’? perfon,' as was éi'pliined1 above.
If 'a 'ma^er'gMi’'maniidiiffi'bn to his Mokatib, he is accordingly a Mokatib
free,'“becaufe the matter fsnpfbpfiet6r of his perfon, 'and therefore oof- “ ayb*.«n>“ -
ieiies the power of emancipating him and in thiS 'cafe the raafom is
remitted from the MotiSt&'i‘'Bg&bfe he engaged for it'folely asf Oppbfed
to his emancipationbut' as that has been obtained wiihbut'rahfom,.
it is confequently hot due.
O b j e c t i o n .— It would Tfere'appear that' th €lMbMiib isr hot
free, as the/cbntraft; of Kitabat i^ BindingiJon ’ the part o f his
mafter.
Reply.— Although the'contrail of Kitabat be bindmgmnfthe ’part
of the mafter, yet it may Be Broken with the cohfent of the Mokhib;
and it is evident that the ‘ Mokidtib' cow^evAbid the breifch of it in'the
prefent inftance, in order that he may befemancipated'vVithoutr'jiayuig
ranfom. fetwithfiahdihg this', however^ ‘his dcqaifitiOfisJremain*-fecured
to him; becaufe the contrail fe^WU^'only'^ith'if«^ie& to,
the ranfom, out of'tendernefs to'his“ihtereftJ “
* T h a t is tp fay, a Have is at liberty to break offy or fail, in, the fulfilment o f .ap o n -
ira& o f Kitabat, although the mafar have not this liberty.
Is