Is it valid to stipulate the exception of the fetus when manumitting a female slave?
General Chapter
Al-Mughni
Book of Mukātaba (Contractual Manumission)
Primary text
The stipulation excluding the fetus is valid. This view is supported by Ibn Umar, Abu Hurayrah, al-Nakh'i, Ishaq, and Ibn al-Mundhir. The primary evidence is the practice of Companions like Ibn Umar and Abu Hurayrah, for whom no opposing view among the Companions is known. Furthermore, the Prophet (peace be upon him) stated, "Muslims adhere to their conditions." This stipulation is a condition imposed on the one being freed, making it permissible by this Hadith. Another justification is that the master's admission of freedom for the child is valid, thus his stipulation regarding the child is also valid. The fetus is distinguishable from cases of sale because manumission is a gift (*tabarru'*) whose validity does not depend on knowing the qualities of the freed person, unlike sale which is a contract of exchange requiring knowledge of the counter-value.
Supporting text
Malik and Al-Shafi'i hold that stipulating the fetus is invalid because the Prophet (peace be upon him) prohibited exceptions (*al-thunya*) unless known, and because excluding a fetus is invalid in a sale, it should be invalid in manumission, similar to excluding a body part. Ibn Sirin stated that the master gets what he stipulated, while 'Ata and Al-Sha'bi agreed that if he stipulates the fetus, he may exclude it.