What is the ruling if the disagreement over sale versus marriage occurs after consummation but before the price is paid?
General Chapter
Al-Mughni
Book of Acknowledgment of Rights
Primary text
If consummation has occurred but the price has not been paid, the seller acknowledges that the slave has become an Umm Walad (mother of a child born of the master/owner), and her child is free. The seller also admits having no claim to the dower (*mahr*), while claiming the price. The buyer denies all these claims. The child's freedom is established based on the admission of the one whose ownership is being claimed (the seller). There is no claim of *wala'a* (patronage rights) over the child because the seller admits the child is intrinsically free. The slave is not returned to the seller because of the admission that she is an Umm Walad, and transferring ownership of her is prohibited. The buyer must swear an oath that they did not purchase her, and the purchase price is waived, except for the amount of the dower, which is obligatory due to their agreement on its necessity, even if they disagree on its underlying cause.
Supporting text
Some followers of Shafi'i hold that both parties must swear oaths, and neither the dower nor the price is obligatory. This is the view of Al-Qadi, who however does not require an oath from the seller concerning the denial of marriage. The upkeep of the child falls upon the father because the child is free, and the upkeep of the slave falls upon her husband, as he is either a husband or a master, both of which necessitate maintenance obligations.