Does divorce occur if the condition is met by giving a free person, a usurped slave, or a mortgaged slave?
General Chapter
Al-Mughni
Book of Khul' (Redemption Divorce)
Primary text
If the wife provides a slave who is already free, usurped (maghsoub), or mortgaged, the divorce does not take place. This is because the act of giving ('a'tiyani') in this context implies the transfer of valid ownership, and that which cannot be validly owned or transferred does not fulfill the condition of the gift stipulated for the divorce to occur. This view is supported by Abu Bakr and indicated by Ahmad.
Supporting text
A contrary view held by Al-Qadi suggests the divorce does occur, even if the specified slave is free or usurped, because by specifying the particular slave, the husband has precluded the wife's independent legal judgment ('ijtihad') regarding alternatives. Therefore, upon delivery, the specified attribute is found to exist, triggering the divorce, unlike cases where the slave was unspecified. This second view is also attributed to two opinions among the Shafi'i scholars. If divorce occurs under this second view, there is a dispute among them whether the husband must return the value or the Mahr al-Mithl (equivalent dower).