What is the ruling regarding the offspring of a mortgaged female slave having intercourse with the pledgee?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the pledgee claims ignorance and it is plausible, the child born is free, and the pledgee owes the value of the child to the owner. If the claim of ignorance is not plausible (e.g., the pledgee grew up among Muslims knowledgeable of the law), the claim is rejected, and the child is considered a slave belonging to the mortgagor, as the act is considered fornication. This ruling applies regardless of whether the intercourse occurred with the permission of the mortgagor or without it.
Supporting text
There is a differing opinion among some Shafi'i scholars suggesting that the value of the child is not due if the mortgagor explicitly permitted the intercourse. This view holds that permission for intercourse implies permission for any resulting consequence, citing the precedent that permission for the pledgee to impregnate the slave cancels the pledge right concerning the debt. The primary opinion holds that liability for payment stems from the mistaken belief of permissibility, which is negated when permission is granted, distinguishing it from the consequence of the act itself.