Is sexual intercourse by the Mudarib (speculator/partner) with the capital's female slave permissible?
General Chapter
Al-Mughni
Book of Partnership
Primary text
Sexual intercourse by the Mudarib with the capital's female slave is forbidden, whether profit has materialized or not. If he engages in it, he is liable for the dower (*mahr*) and disciplinary punishment (*ta'zir*). If she becomes pregnant and no profit has materialized, the child is a slave because the conception occurred outside of ownership or apparent ownership, and she does not become an *umm walad* (concubine who bore his child). If profit does materialize, the child is free, she becomes his *umm walad*, and he is liable for her value.
Supporting text
Sufyan and Ishaq stated a ruling similar to this. Al-Qadi ruled that if no profit materialized, he faces the legal punishment (*hadd*) because the intercourse occurred without ownership or apparent ownership. The established position from Ahmad is that he only faces *ta'zir*, because the realization of profit depends on valuation, which is uncertain, as the goods might be worth more than the valuation, creating a doubt (*shubha*) which serves to avert the *hadd*.