What is the ruling if the dispute over sale versus marriage occurs before consummation and before the slave becomes an Umm Walad?
General Chapter
Al-Mughni
Book of Acknowledgment of Rights
Primary text
The slave remains in the possession of the alleged husband because both parties agree on the permissibility of the relationship for him and his right to retain her; they only differ on the cause. She is not returned to the master because both parties agree she is prohibited to him. The seller is entitled to the lesser of the sale price or the dower, due to their agreement that he is entitled to that amount.
Supporting text
Al-Qadi rules that the alleged husband swears an oath that he did not purchase her, as he is the denier, and the purchase price is waived from him. The master is not required to swear an oath regarding the denial of marriage because he is not subject to an oath in such a case. According to Al-Shafi'i, both parties swear mutual oaths, the price is waived from the alleged husband because the sale contract was not established, and the dower is not obligatory because the master does not claim it. The slave is returned to her master, with two opinions on the manner of return: either she returns to him in reality and appearance, or she returns only in appearance, in which case a judge sells her to cover the price.