Is the purchase of a Muslim by a non-Muslim valid?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The purchase of a Muslim by a non-Muslim is invalid. This is the position held by Malik in one narration from him and by Al-Shafi'i according to one of his two opinions. The reasoning is that the continuation of the non-Muslim's ownership over the Muslim is prevented; therefore, the initiation of that ownership through purchase is also prevented, analogous to marriage (Nikah). Furthermore, it is a contract that establishes non-Muslim ownership over a Muslim, which is invalid, similar to marriage and ownership via inheritance. The continuation of ownership (inheritance) is stronger than the initiation of ownership through action and choice, demonstrated by the fact that ownership is established through action and choice for someone prohibited (like in hunting), yet its initiation is forbidden. Thus, the establishment of the lesser (purchase) is not necessitated by the establishment of the greater (inheritance) when we certainly prevent the continuation by forcing its removal.
Supporting text
Abu Hanifa holds that the sale is valid, and the non-Muslim purchaser must be compelled to remove his ownership. This is based on the premise that a non-Muslim can inherit a Muslim, and if the Muslim remains in his possession after conversion to Islam, his ownership remains, thus validating the purchase for him, just as it would be valid for a Muslim buyer.