What is the ruling regarding the seller's liability for Hadd if he has intercourse with the slave knowing the sale is invalid and assuming it does not annul the contract?
Chapter on the Option of the Two Parties in Sale
Al-Mughni
Book of Sales
Primary text
If the seller knows the prohibition and that his ownership has ceased, and his act of intercourse does not annul the sale, a Hadd is due, as narrated from Ahmad. The reasoning is that his intercourse does not coincide with ownership or doubt of ownership. However, the counter-argument is that ownership is established by the initiation of the intercourse, meaning the completion of the act occurs within his ownership, especially given scholarly differences regarding his ownership status and the permissibility of intercourse. Hadd is not obligatory with any single doubt, so it is certainly waived when multiple doubts converge. Moreover, revocation might occur by mere touching before intercourse, meaning ownership reverted before the act.
Supporting text
Based on the principle that ownership is established by the buyer placing his hand on the slave (as in combing or dyeing her), the act of intercourse and touching the private parts with the penis is more deserving of establishing ownership. Consequently, if the sale is revoked, the offspring is free, lineage is established, no value is due for the child, no Mahr is owed, and the slave becomes an Umm Walad. Regarding the opinion of our scholars, if the seller knew the prohibition, his offspring is enslaved, and lineage is not established. If he was ignorant, lineage is established, the child is free, he owes the child's value on the day of birth, he owes Mahr, but the slave does not become his Umm Walad because he engaged in intercourse when she was not his property.