What is the ruling if the first child born is stillborn and the second is alive, in a case where freedom is conditioned upon the first child born being free?
General Chapter
Al-Mughni
Book of Manumission
Primary text
If the first child born is stillborn and the second is alive, the living child is freed. This is the position of Abu Hanifa. This ruling is based on the argument that the condition for emancipation was met in the stillborn, but since emancipation cannot take place in a deceased person, the oath or condition is dissolved and attaches to the living child, analogous to a case where striking a living person fulfills an oath, while striking a dead one does not. The lifespan of the child is considered a prerequisite for valid emancipation.
Supporting text
Abu Yusuf, Muhammad, and al-Shafi'i hold that neither child is freed. Their reasoning is that the condition for emancipation was met in the deceased child, for whom emancipation is impossible, thereby nullifying the oath. They argue by analogy to a case where if one says to a slave woman, 'If you bear a child, you are free,' and she bears a stillborn, she is freed. They interpret the condition as intending a child whose emancipation is legally valid, which implies being alive.