What is the ruling when co-owners of an enslaved person disagree on upholding or dissolving a contract of manumission (Kitabah) after the enslaved person proves unable to pay?

General Chapter

Al-Mughni

Book of Mukātaba (Contractual Manumission)

Book 68 · Issue 1 · Bab 1

Open in Qurani

Primary text

If co-owners of an enslaved person disagree on upholding or dissolving a contract of manumission (Kitabah) after the enslaved person defaults, if both agree to dissolve it or both agree to uphold the contract, their mutual decision is valid. If one dissolves and the other upholds, the contract stands valid only for half, and half of the person reverts to being a captive slave (qinn) and the other half remains a manumitted contracts slave (mukatab). This is supported by the reasoning that the contract is two distinct agreements that do not annul each other based on the decision of one partner, similar to a sale. The resulting partial enslavement is permitted as it arose as a consequence of the partner's disposal of their share, analogous to a partner emancipating their share. Furthermore, if establishing the contract initially is valid, then continuing its duration should not be invalidated by the other partner's action. The harm resulting from the dissolution stems from the dissolving partner's own contract and dissolution, and thus should not be removed by the dissolution of another's contract. Moreover, dissolving the contract causes harm to the manumitted person and their master, and the necessity to avert harm from the partner who did not dissolve is prioritized over the one who did, based on three factors: The harm to the dissolving partner is incidental to the continuation of the partner's contract in their own property, whereas the partner's harm is through the nullification of their contract and disposal of their property. Secondly, the dissolution enacted by one partner is not recognized by Sharia in this context, unlike the recognized validity of the dissolution of the other partner's contract in transactions like sale or mortgage. Thirdly, the dissolution's harm extends to the manumitted person (two parties harmed), while the dissolving partner's harm does not extend beyond them. If harms are deemed equal, the existing state must be maintained without introducing dissolution without decisive evidence.

Supporting text

The view held by Al-Qadi and the school of Al-Shafi'i is that the contract of manumission is entirely voided in its entirety if one partner dissolves it, because if the manumission remained for half, the portion belonging to the dissolving partner would return to them in a deficient state.