Upon whom does the maintenance (Nafaqah) of a slave bequeathed for service fall?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The maintenance of a slave bequeathed for service, and other animals bequeathed for benefit, may be incumbent upon the owner of the slave's title (the bare ownership or 'raqabah'). This view is attributed to the position of Ahmad, Abu Thawr, and the apparent view of the Shafi'i school. The evidence cited is that maintenance follows ownership of the physical body, similar to a rented slave or one without benefit. Furthermore, it is argued that the Zakat al-Fitr (al-Fitrah) is due from the one responsible for maintenance, and since Fitrah follows maintenance, the obligation of the secondary upon a person indicates the obligation of the primary upon him.
Supporting text
It is more likely that the maintenance is incumbent upon the owner of the benefit (the usufruct), which is the position of the Ashab al-Ra'y and al-Istakhri. This is because the owner of the benefit possesses the benefit perpetually, making maintenance incumbent upon him, analogous to a husband. Since the benefit belongs to him, the detriment associated with it should also fall upon him, just as the owner of both the title and benefit bears liability. Imposing maintenance upon one who receives no benefit constitutes pure detriment, implying the bequest meant conferring benefit upon one party while leaving the detriment to the testator's heirs. This interpretation is negated by the legal maxim 'There shall be no harm nor reciprocating harm.' This principle supports the rule that liability for loss follows benefit, as seen in the case of 'al-kharaj bi al-daman' (liability follows benefit).