What is the ruling on rescinding the sale of a pregnant enslaved woman after she has given birth while the seller is bankrupt?
General Chapter
Al-Mughni
Book of the Insolvent (Bankruptcy)
Primary text
The opinion held by Al-Qadi is that the right to rescind the sale of both the mother and the child exists in all circumstances without distinction. However, the sounder view is contingent on whether the child is considered separate property. If the child is considered separate property (a separate increase), then according to the opinion of Abu Bakr, rescission of both is permitted. If the child is considered the property of the bankrupt debtor, rescission of the mother may be barred to prevent separation between mother and child, or the mother may be returned and the value of the child paid to the seller to keep them together. If they are not separated, the mother and child are sold together, and the proceeds are divided proportionally to their respective values; the portion corresponding to the mother goes to the original seller, and the portion corresponding to the child goes to the bankrupt debtor.
Supporting text
If it is held that the child has a legal standing (which is considered correct), and both mother and child have increased in value due to the birth, their status is like that of the sold item which increased with an attached increase, invalidating rescission. If neither has increased, rescission is permitted for both. If one increased and the other did not, the ruling follows the differing opinions concerning the partial loss of one of two jointly sold items: either rescission is permitted for the part that did not increase, or rescission is barred entirely because the complete original item was not found intact, similar to a single item.