Is sexual intercourse permissible with an indentured servant if it was stipulated in the manumission contract?
General Chapter
Al-Mughni
Book of Mukātaba (Contractual Manumission)
Primary text
If the master stipulates intercourse within the contract, it is permissible for him to have intercourse with her. This is supported by the Prophet's saying: "Muslims are bound by their conditions." Since she is owned property, the master has the right to stipulate benefit from her, which is valid, similar to stipulating service. The prohibition against intercourse without stipulation, despite the remaining ownership, existed due to her right, which is waived when she agrees to the condition. This is permissible because he is reserving a part of what was his, just as stipulating service is valid, and it differs from sale because sale extinguishes his ownership, whereas indenture does not, as evidenced by the saying: 'The indentured servant is a slave as long as he owes even a single Dirham.'
Supporting text
Sa'id ibn al-Musayyib agrees with this ruling. However, the majority of the previously mentioned scholars hold that he may not stipulate intercourse, arguing that what is not established by the unrestricted contract cannot be established by stipulation, similar to stipulating marriage or manumission. Al-Shafi'i argues that stipulating intercourse invalidates the entire contract as an invalid condition. Al-Malik believes the contract is not invalidated because the stipulation does not violate an essential pillar or condition of the contract.