Is a dower (*mahr*) due when the pledgee has intercourse with the mortgaged slave?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the intercourse occurs with the permission of the mortgagor, no dower is due. This is because the mortgagor permitted the cause (intercourse), analogous to permission to kill. Furthermore, the owner permitted the consumption of the benefit, for which no compensation is due, similar to a free woman who willingly consents. If the intercourse occurs without the mortgagor's permission, the dower is obligatory, whether the slave was coerced or consented.
Supporting text
Abu Hanifa holds that the dower is due because it is initially obligatory upon the slave, and the permission of another party does not nullify it. Al-Shafi'i holds that no dower is due if the slave consented to the intercourse, based on the prohibition of the dower of a prostitute (*baghi*), and because if *hadd* is due upon the female slave, the dower is waived, similar to a free woman. The prevailing view maintains that the dower is due to the owner and is not waived by the slave's consent or permission, as the owner, whose right is being infringed upon, did not grant permission. The prohibition regarding the dower of a prostitute is specific to coercion, as indicated in Quran 24:33.