What is the legal effect when a master says to his female slave, 'You are divorced' (anti taliqu), while intending manumission (al-'itq)?
General Chapter
Al-Mughni
Book of Manumission
Primary text
There are two established narrations concerning the utterance of divorce directed towards one's female slave with the intention of manumission. The opinion stating that manumission does not occur holds that divorce is a word established for the removal of proprietary rights over benefit (*al-manfa'ah*), and therefore, it does not remove proprietary rights over the person (*al-raqabah*), similar to the dissolution of a lease. Furthermore, since proprietary rights over the person cannot be reinstated through revocation (*al-ruj'ah*), it is not dissolved by divorce, just like other forms of ownership.
Supporting text
The second narration holds that the utterance is an implicit statement (*kinayah*) that frees the female slave if manumission is intended. This view is held by Malik and Al-Shafi'i. They argue that servitude (*al-riqq*) is one of the two forms of ownership over a person, and thus it dissolves with the utterance of divorce, similar to the other form (marriage). Alternatively, the word established for dissolving one form of ownership becomes an implicit statement for dissolving the other, analogous to freedom being implicitly stated in dissolving a marriage. Moreover, the word contains a sense of release, so when the master intends to release her from his ownership, he intends by his word what it can imply, thus achieving freedom, similar to other implicit terms of manumission.