What is the ruling on lending female human beings (female slaves)?
Chapter on Loan (Qard)
Al-Mughni
Book of Sales
Primary text
The loan of female slaves is valid, provided the lender is one of her *mahram* relatives. This is the position of Malik and Al-Shafi'i. They argue that ownership established through a loan is weak, as it does not prevent the borrower from returning her to the lender, and thus it does not permit marital intercourse (*watu*). Since intercourse is not permitted, the loan contract itself is invalid due to the lack of distinction between this and other non-permissible cases, and because matters concerning procreation (*abda'*) require caution. They fear that if lending female slaves were permitted, a man could borrow a female slave, have intercourse with her, and then return her the same day, repeating the act whenever desired, similar to borrowing movable property.
Supporting text
The opposing view maintains that the contract transferring ownership is sound, and thus male and female slaves are treated equally in this contract, like all other contracts. They refute the claim of weak ownership, stating that ownership through loan permits all forms of disposition, unlike ownership during a period of option in a sale. Furthermore, the claim that the borrower can return the slave at any time is denied when the value must be returned instead. Even if the borrower intended intercourse and immediate return, this invalidates the loan, similar to purchasing a slave with the intent to return her based on a defect. If such an intent occurs incidentally, it does not invalidate the contract, consistent with cases in sales or exchanges of female slaves in *salam* contracts.