What is the ruling on the sale of an apostate (Murtad) and a warrior who fought the Muslims (Muharib) if he repents before capture?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The ruling concerning an apostate is the same as that of a killer regarding the validity of sale and all other mentioned rulings. His execution is not mandatory due to the possibility of his returning to Islam. Similarly, a warrior who repents before being captured is treated like a regular killer. This is the view of Abu Al-Khattab, who argues that since he is a slave whose execution is due, his manumission is valid, and utilizing his labor is permissible, thus his sale is valid, similar to a non-killer. Also, he can be utilized until his execution date, and manumitting him makes his children's allegiance flow from the manumitter, making the sale permissible, like an incurably sick person.
Supporting text
Al-Qadi holds that the sale is invalid because his execution and annihilation have become certain, eradicating his monetary value, and keeping him is prohibited, making him like useless vermin or carrion. The slight utility he offers before execution does not establish grounds for sale, similar to the utility derived from carrion for plugging a leak or feeding a dog. The former position is preferred because he was a subject of sale, and the default is the continuation of his status. The certainty of his destruction does not render him non-existent, evidenced by the fact that life-related rulings, like accountability, do not cease, nor do rulings related to the deceased, such as inheritance or validity of his will. Since his exit from the default ruling requires proof, and there is no textual basis or consensus for this, the analogy to vermin and carrion is invalid because those never had utility, and the certainty of destruction here can be removed by the removal of the basis for certainty (e.g., retracting a confession or evidence). Even if it cannot be removed, it means his destruction is confirmed, making him like an incurably sick person whose sale is permissible.