What recourse does the wife have if the specified dower slave turns out to be free or usurped, regardless of whether possession was transferred?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
If the marriage contract concerned a specific slave whom the wife believed to be owned property but turns out to be a free person or a usurped item, she is entitled to the value of that slave. This is the position of Abu Yusuf and the old opinion of Al-Shafi'i. The rule holds whether the husband delivered the item or not, as delivering something invalid for transfer establishes no possession, rendering the delivery as if it never occurred.
Supporting text
Abu Hanifa and Muhammad hold that regarding a usurped item, the rule is the same as above (entitled to value), but regarding a free man, they hold she is entitled only to the equivalent dower (mahr al-mithl), arguing the contract was tied to that specific individual whom she knew was free by his pointing, similar to if they both knew he was free. However, the prevailing view asserts the right to the value because the contract was based on the specified term, and she consented to its value under the belief of ownership, akin to receiving a defective item and returning it.