Is the sale of a slave who has committed a crime valid?

Chapter on Selling the Musarrah (Animal with milk retained in udder)

Al-Mughni

Book of Sales

Book 12 · Issue 1 · Bab 5

Open in Qurani

Primary text

The sale of a slave who has committed an injurious act is valid, whether the act was intentional or accidental, and whether it involved life or less, making retaliation obligatory or not. This is the position held by Abu Hanifa and one opinion of Al-Shafi'i. The primary evidence supporting validity is that the right against the perpetrator is not firmly established; the perpetrator can discharge it through others, akin to Zakat. Alternatively, the right is established without the master's consent, so it does not prevent sale, similar to a debt on the master's liability. Furthermore, the act is a disposition concerning the perpetrator, thus permissible, like manumission. If the right is Qisas (retaliation), its safety is hoped for while its destruction is feared, resembling a sick person.

Supporting text

The opposing view, attributed to another opinion of Al-Shafi'i, states that the sale is invalid because an individual's right is attached to the slave's neck, preventing sale, analogous to a pledge (rahn), yet the right of injury is stronger since it precedes the right of the pledgee.