| Reference | : Hisn al-Muslim 85 |
Malik related to me that he heard that Abu Salama ibn Abd ar- Rahman and Sulayman ibn Yasar were both asked, "Does one pronounce judgement on the basis of an oath with one witness?" They both said, "Yes."
Malik said, "The precedent of the sunna in judging by an oath with one witness is that if the plaintiff takes an oath with his witness, he is confirmed in his right. If he draws back and refuses to take an oath, the defendant is made to take an oath. If he takes an oath, the claim against him is dropped. If he refuses to take an oath, the claim is confirmed against him."
Malik said, "This procedure pertains to property cases in particular. It does not occur in any of the hadd-punishments, nor in marriage, divorce, freeing slaves, theft or slander. If some one says, 'Freeing slaves comes under property,' he has erred. It is not as he said. Had it been as he said, a slave could take an oath with one witness, if he could find one, that his master had freed him.
"However, when a slave lays claim to a piece of property, he can take an oath with one witness and demand his right as the freeman demands his right."
Malik said, "The sunna with us is that when a slave brings somebody who witnesses that he has been set free, his master is made to take an oath that he has not freed him, and the slave's claim is dropped."
Malik said, "The sunna about divorce is also like that with us. When a woman brings somebody who witnesses that her husband has divorced her, the husband is made to take an oath that he has not divorced her. If he takes the oath, the divorce does not proceed . "
Malik said, "There is only one sunna of bringing a witness in cases of divorce and freeing a slave. The right to make an oath only belongs to the husband of the woman, and the master of the slave. Freeing is a hadd matter, and the testimony of women is not permitted in it because when a slave is freed, his inviolability is affirmed and the hadd punishments are applied for and against him. If he commits fornication and he is a muhsan, he is stoned. If he kills a slave, he is killed for it. Inheritance is established for him, between him and whoever inherits from him. If somebody disputes this, arguing that if a man frees his slave and then a man comes to demand from the master of the slave payment of a debt, and a man and two women testify to his right, that establishes the right against the master of the slave so that his freeing him is cancelled if he only has the slave as property, inferring by this case that the testimony of women is permitted in cases of setting free. The case is not as he suggests (i.e. it is a case of property not freeing). It is like a man who frees his slave, and then the claimant of a debt comes to the master and takes an oath with one witness, demanding his right. By that, the freeing of the slave would be cancelled. Or else a man comes who has frequent dealings and transactions with the master of the slave. He claims that he is owed money by the master of the slave. Someone says to the master of the slave, 'Take an oath that you don't owe what he claims'. If he draws back and refuses to take an oath, the one making the claim takes an oath and his right against the master of the slave is confirmed. That would cancel the freeing of the slave if it is confirmed that property is owed by the master."
Malik said, "It is the same case with a man who marries a slave-girl and then the master of the slave-girl comes to the man who has married her and claims, 'You and so-and-so have bought my slave-girl from me for such an amount of dinars. The husband of the slave-girl denies that. The master of the slave-girl brings a man and two women and they testify to what he has said. The sale is confirmed and his claim is considered true. So the slave-girl is haram for her husband and they have to separate, even though the testimony of women is not accepted in divorce."
Malik said, "It is also the same case with a man who accuses a free man, so the hadd falls on him. A man and two women come and testify that the one accused is a slave. That would remove the hadd from the accused after it had befallen him, even though the testimony of women is not accepted in accusations involving hadd punishments."
Malik said, "Another similar case in which judgement appears to go against the precedent of the sunna is that two women testify that a child is born alive and so it is necessary for him to inherit if a situation arises where he is entitled to inherit, and the child's property goes to those who inherit from him, if he dies, and it is not necessary that the two women witnesses should be accompanied by a man or an oath even though it may involve vast properties of gold, silver, live-stock, gardens and slaves and other properties. However, had two women testified to one dirham or more or less than that in a property case, their testimony would not affect anything and would not be permitted unless there was a witness or an oath with them."
Malik said, "There are people who say that an oath is not acceptable with only one witness and they argue by the word of Allah the Blessed, the Exalted, and His word is the Truth, 'And call in to witness two witnesses, men; or if the two be not men, then one man and two women, such witnesses as you approve of.' (Sura 2 ayat 282). Such people argue that if he does not bring one man and two women, he has no claim and he is not allowed to take an oath with one witness."
Malik said, "Part of the proof against those who argue this, is to reply to them, 'Do you think that if a man claimed property from a man, the one claimed from would not swear that the claim was false?' If he swears, the claim against him is dropped. If he refuses to take an oath, the claimant is made to take an oath that his claim is true, and his right against his companion is established. There is no dispute about this with any of the people nor in any country. By what does he take this? In what place in the Book of Allah does he find it? So if he confirms this, let him confirm the oath with one witness, even if it is not in the Book of Allah, the Mighty, the Majestic! It is enough that this is the precedent of the sunna. However, man wants to recognise the proper course of action and the location of the proof. In this there is a clarification for what is obscure about that, if Allah ta'ala wills."
| USC-MSA web (English) reference | : Book 36, Hadith 7 |
| Arabic reference | : Book 36, Hadith 1411 |
| Grade: | Sahih (Darussalam) |
| Reference | : Sunan Ibn Majah 4080 |
| In-book reference | : Book 36, Hadith 155 |
| English translation | : Vol. 5, Book 36, Hadith 4080 |
| Grade: | Maudu’ (Darussalam) |
| Reference | : Sunan Ibn Majah 4297 |
| In-book reference | : Book 37, Hadith 198 |
| English translation | : Vol. 5, Book 37, Hadith 4297 |
| Reference | : Al-Adab Al-Mufrad 1030 |
| In-book reference | : Book 42, Hadith 67 |
| English translation | : Book 42, Hadith 1030 |
| Sunnah.com reference | : Book 10, Hadith 56 |
| English translation | : Book 10, Hadith 1296 |
| Arabic reference | : Book 10, Hadith 1257 |
| Sunnah.com reference | : Book 2, Hadith 8 |
| Arabic/English book reference | : Book 2, Hadith 158 |
| Sunnah.com reference | : Book 2, Hadith 312 |
| English translation | : Book 2, Hadith 402 |
| Arabic reference | : Book 2, Hadith 407 |
| Sunnah.com reference | : Book 2, Hadith 455 |
| English translation | : Book 2, Hadith 522 |
| Arabic reference | : Book 2, Hadith 524 |
| Reference | : Hisn al-Muslim 222 |
| Reference | : Al-Adab Al-Mufrad 1086 |
| In-book reference | : Book 43, Hadith 36 |
| English translation | : Book 43, Hadith 1086 |
| Sunnah.com reference | : Book 9, Hadith 18 |
| English translation | : Book 9, Hadith 1216 |
| Arabic reference | : Book 9, Hadith 1186 |
| Sunnah.com reference | : Book 16, Hadith 131 |
| English translation | : Book 16, Hadith 1609 |
| Arabic reference | : Book 16, Hadith 1566 |
| Reference | : Bulugh al-Maram 1430 |
| In-book reference | : Book 14, Hadith 34 |
| English translation | : Book 14, Hadith 1430 |
| Sunnah.com reference | : Book 8, Hadith 117 |
| English translation | : Book 8, Hadith 1079 |
| Arabic reference | : Book 8, Hadith 1067 |
| Sunnah.com reference | : Book 2, Hadith 355 |
| English translation | : Book 2, Hadith 436 |
| Arabic reference | : Book 2, Hadith 441 |
| Sunnah.com reference | : Book 2, Hadith 459 |
| English translation | : Book 2, Hadith 526 |
| Arabic reference | : Book 2, Hadith 528 |
Yahya related to me from Malik from a reliable source from Amr ibn Shuayb from his father from his father's father that the Messenger of Allah, may Allah bless him and grant him peace, forbade transactions in which nonrefundable deposits were paid.
Malik said, "That is, in our opinion, but Allah knows best, that for instance, a man buys a slave or slave-girl or rents an animal and then says to the person from whom he bought the slave or leased the animal, 'I will give you a dinar or a dirham or whatever on the condition that if I actually take the goods or ride what I have rented from you, then what I have given you already goes towards payment of the goods or hire of the animal. If I do not purchase the goods or hire the animal, then what I have given you is yours without liability on your part.' "
Malik said, "According to the way of doing things with us there is nothing wrong in bartering an arabic speaking merchant slave for abyssinian slaves or any other type that are not his equal in eloquence, trading, shrewdness, and know-how. There is nothing wrong in bartering one slave like this for two or more other slaves with a stated delay in the terms if he is clearly different. If there is no appreciable difference between the slaves, two should not be bartered for one with a stated delay in the terms even if their racial type is different."
Malik said, "There is nothing wrong in selling what has been bought in such a transaction before taking possession of all of it as long as you receive the price for it from some one other than the original owner."
Malik said, "An addition to the price must not be made for a foetus in the womb of its mother when she is sold because that is gharar (an uncertain transaction). It is not known whether the child will be male or female, good-looking or ugly, normal or handicapped, alive or dead. All these things will affect the price."
Malik said that in a transaction where a slave or slave-girl was bought for one hundred dinars with a stated credit period that if the seller regretted the sale there was nothing wrong in him asking the buyer to revoke it for ten dinars which he would pay him immediately or after a period and he would forgo his right to the hundred dinars which he was owed.
Malik said, "However, if the buyer regrets and asks the seller to revoke the sale of a slave or slave-girl in consideration of which he will pay an extra ten dinars immediately or on credit terms, extended beyond the original term, that should not be done. It is disapproved of because it is as if, for instance, the seller is buying the one hundred dinars which is not yet due on a year's credit term before the year expires for a slave-girl and ten dinars to be paid immediately or on credit term longer than the year. This falls into the category of selling gold for gold when delayed terms enter into it."
Malik said that it was not proper for a man to sell a slave-girl to another man for one hundred dinars on credit and then to buy her back for more than the original price or on a credit term longer than the original term for which he sold her. To understand why that was disapproved of in that case, the example of a man who sold a slave-girl on credit and then bought her back on a credit term longer than the original term was looked at. He might have sold her for thirty dinars with a month to pay and then buy her back for sixty dinars with a year or half a year to pay. The outcome would only be that his goods would have returned to him just like they were and the other party would have given him thirty dinars on a month's credit against sixty dinars on a year or half a year's credit. That was not to be done.
قَالَ مَالِكٌ: وَذلِكَ فِيمَا نُرَى - وَاللهُ أَعْلَمُ - أَنْ يَشْتَرِيَ الرَّجُلُ الْعَبْدَ، أَوِ الْوَلِيدَةَ. أَوْ يَتَكَارَى الدَّابَّةَ. ثُمَّ يَقُولُ لِلَّذِي اشْتَرَى مِنْهُ، أَوْ تَكَارَى مِنْهُ: أُعْطِيكَ دِينَاراً، أَوْ دِرْهَماً، أَوْ أَكْثَرَ مِنْ ذلِكَ، أَوْ أَقَلَّ. عَلَى أَنِّي إِنْ أَخَذْتُ السِّلْعَةَ، أَوْ رَكِبْتُ مَا تَكَارَيْتُ مِنْكَ، فَالَّذِي أَعْطَيْتُكَ هُوَ مِنْ ثَمَنِ السِّلْعَةِ. أَوْ مِنْ كِرَاءِ الدَّابَّةِ، وَإِنْ تَرَكْتُ ابْتِيَاعَ السِّلْعَةِ، أَوْ كِرَاءَ الدَّابَّةِ، فَمَا أَعْطَيْتُكَ لَكَ بَاطِلٌ بِغَيْرِ شَيْءٍ.
قَالَ مَالِكٌ: وَالْأَمْرُ عِنْدَنَا، أَنَّهُ لاَ بَأْسَ بِأَنْ يَبْتَاعَ الْعَبْدَ التَّاجِرَ الْفَصِيحَ، بِالْأَعْبُدِ مِنَ الْحَبَشَةِ، أَوْ مِنْ جِنْسٍ مِنَ الْأَجْنَاسِ، لَيْسُوا مِثْلَهُ فِي الْفَصَاحَةِ، وَلاَ فِي التِّجَارَةِ، وَالنَّفَاذِ، وَالْمَعْرِفَةِ. لاَ بَأْسَ بِهذَا، أَنْ يَشْتَرِيَ مِنْهُ الْعَبْدَ بِالْعَبْدَيْنِ، أَوْ بِالْأَعْبُدِ إِلَى أَجَلٍ مَعْلُومٍ. إِذَا اخْتَلَفَ، فَبَانَ اخْتِلاَفُهُ .فَإِنْ أَشْبَهَ بَعْضُ ذلِكَ بَعْضاً، حَتَّى يَتَقَارَبَ، فَلاَ تَأْخُذَنْ مِنْهُ اثْنَيْنِ بِوَاحِدٍ، إِلَى أَجَلٍ. وَإِنِ اخْتَلَفَتْ أَجْنَاسُهُمْ.
قَالَ مَالِكٌ: ...
| USC-MSA web (English) reference | : Book 31, Hadith 1 |
| Arabic reference | : Book 31, Hadith 1293 |
| Grade: | Sahih (Darussalam) [Bukhari 1448] (Darussalam) |
| Reference | : Musnad Ahmad 72 |
| In-book reference | : Book 1, Hadith 68 |
Yahya related to me from Malik from Yahya ibn Said that al-Qasim ibn Muhammad said, "One of my wives died and Muhammad ibn Kab al Quradhi came to console me about her. He told me of one among the Bani Israil who was a diligent, worshipping, knowing and understanding man who had a wife that he admired and loved, and she died. He grieved over her intensely and lamented her until he withdrew into a house and locked himself in, hidden from everyone, and no-one visited him. A woman heard about him and went to him, saying, 'I need him to give me an opinion. Nothing will satisfy me except what he says about it.' Everyone went away, but she stuck to his door and said, 'I must see him.' Someone said to him, 'There is a woman who wishes to ask your opinion about something,' and she insisted, 'I will only talk to him about it.' When everyone had gone away, and she still had not left his door, he said, 'Let her in.' So she went in and saw him and said, 'I have come to ask your opinion about something.' He said, 'What is it?' She said, 'I borrowed a piece of jewellery from a neighbour of mine, and I have worn it and used it for a long time. Then they sent to me for it. Should I let them have it back?' He said, 'Yes, by Allah.' She said, 'I have had it for a long time.' He said, 'It is more correct for you to return it to them, since they have lent it to you for such a long time.' She said, 'Yes. May Allah have mercy on you. Do you then grieve over what Allah has lent you and then taken from you, when He has a greater right to it than you?' Then he saw the situation he was in, and Allah helped him by her words."
| USC-MSA web (English) reference | : Book 16, Hadith 43 |
| Arabic reference | : Book 16, Hadith 565 |
| Reference | : Jami` at-Tirmidhi 2246 |
| In-book reference | : Book 33, Hadith 89 |
| English translation | : Vol. 4, Book 7, Hadith 2246 |
| Grade: | Maudu' (Darussalam) |
| Reference | : Jami` at-Tirmidhi 3059 |
| In-book reference | : Book 47, Hadith 111 |
| English translation | : Vol. 5, Book 44, Hadith 3059 |
| Grade: | Hasan (Darussalam) |
| Reference | : Jami` at-Tirmidhi 3087 |
| In-book reference | : Book 47, Hadith 139 |
| English translation | : Vol. 5, Book 44, Hadith 3087 |
[Al-Bukhari and Muslim].
| Reference | : Riyad as-Salihin 464 |
| In-book reference | : Introduction, Hadith 464 |
| Grade: | Sahih hadeeth] (Darussalam) |
| Reference | : Musnad Ahmad 511 |
| In-book reference | : Book 4, Hadith 104 |
| Reference | : Al-Adab Al-Mufrad 187 |
| In-book reference | : Book 9, Hadith 32 |
| English translation | : Book 9, Hadith 187 |
| Grade: | Da'if Isnād (Zubair `Aliza'i) |
| Reference | : Ash-Shama'il Al-Muhammadiyah 120 |
| In-book reference | : Book 17, Hadith 3 |
| Reference | : Al-Adab Al-Mufrad 44 |
| In-book reference | : Book 1, Hadith 44 |
| English translation | : Book 1, Hadith 44 |
| Reference | : Al-Adab Al-Mufrad 966 |
| In-book reference | : Book 42, Hadith 2 |
| English translation | : Book 42, Hadith 966 |
| Sunnah.com reference | : Book 7, Hadith 127 |
| English translation | : Book 7, Hadith 887 |
| Arabic reference | : Book 7, Hadith 883 |
| Reference | : Hisn al-Muslim 46 |
| Reference | : Hisn al-Muslim 223 |
| Grade: | Da'if (Darussalam) |
| Reference | : Sunan Ibn Majah 778 |
| In-book reference | : Book 4, Hadith 44 |
| English translation | : Vol. 1, Book 4, Hadith 778 |
| Grade: | Sahih (Zubair `Aliza'i) |
| Reference | : Ash-Shama'il Al-Muhammadiyah 121 |
| In-book reference | : Book 17, Hadith 4 |
| Reference | : Bulugh al-Maram 43 |
| In-book reference | : Book 1, Hadith 51 |
| English translation | : Book 1, Hadith 49 |
| Sunnah.com reference | : Book 8, Hadith 174 |
| English translation | : Book 8, Hadith 1122 |
| Arabic reference | : Book 8, Hadith 1111 |
| Sunnah.com reference | : Book 2, Hadith 322 |
| English translation | : Book 2, Hadith 412 |
| Arabic reference | : Book 2, Hadith 417 |
| Arabic/English book reference | : Book 14, Hadith 290 |
| Reference | : Al-Adab Al-Mufrad 697 |
| In-book reference | : Book 31, Hadith 94 |
| English translation | : Book 31, Hadith 697 |
| Sunnah.com reference | : Book 8, Hadith 150 |
| English translation | : Book 8, Hadith 1104 |
| Arabic reference | : Book 8, Hadith 1093 |
| Reference | : Hisn al-Muslim 102 |
| Reference | : Hisn al-Muslim 109 |
Yahya said that he heard Malik say, "The way of doing things generally agreed upon in our community in the case of a man who dies and has sons and one of them claims, 'My father confirmed that so-and- so was his son,' is that the relationship is not established by the testimony of one man, and the confirmation of the one who confirmed it is only permitted as regards his own share in the division of his father's property. The one testified for is only given his due from the share of the testifier."
Malik said, "An example of this is that a man dies leaving two sons, and 600 dinars. Each of them takes 300 dinars. Then one of them testifies that his deceased father confirmed that so-and-so was his son. The one who testifies is obliged to give 100 dinars to the one thus connected. This is half of the inheritance of the one thought to be related, had he been related. If the other confirms him, he takes the other 100 and so he completes his right and his relationship is established. His position is similar to that of a woman who confirms a debt against her father or her husband and the other heirs deny it. She must pay to the person whose debt she confirms, the amount according to her share of the full debt, had it been confirmed against all the heirs. If the woman inherits an eighth, she pays the creditor an eighth of his debt. If a daughter inherits a half, she pays the creditor half of his debt. Whichever women confirm him, pay him according to this.
Malik said, "If a man's testimony is in agreement with what the woman testified to, that so- and-so had a debt against his father, the creditor is made to take an oath with one witness and he is given all his due. This is not the position with women because a man's testimony is allowed and the creditor must take an oath with the testimony of his witness, and take all his due. If he does not take an oath, he only takes from the inheritance of the one who confirmed him according to his share of the debt, because he confirmed his right and the other heirs denied it. It is permitted for him to confirm it."
| USC-MSA web (English) reference | : Book 36, Hadith 23 |
| Grade: | Da'if (Darussalam) |
| Reference | : Jami` at-Tirmidhi 885 |
| In-book reference | : Book 9, Hadith 78 |
| English translation | : Vol. 2, Book 4, Hadith 885 |
| Grade: | Sahih (Darussalam) |
| Reference | : Jami` at-Tirmidhi 3600 |
| In-book reference | : Book 48, Hadith 231 |
| English translation | : Vol. 6, Book 46, Hadith 3600 |
[Al-Bukhari and Muslim].
In another narration, Jabir (May Allah be pleased with him) said: We accompanied Messenger of Allah (PBUH) in the campaign of Dhat-ur-Riqa`. We left Messenger of Allah (PBUH) to take rest under a shady tree. One of the polytheists came to him. The sword of Messenger of Allah (PBUH) was hanging on a tree. He drew it and said: "Are you afraid of me?'' Messenger of Allah (PBUH) said, "No". Then he said: "Who will then protect you from me?'' Messenger of Allah (PBUH) replied, "Allah".
And in a narration of Abu Bakr Al-Isma`ili, the polytheist asked: "Who will protect you from me?'' Messenger of Allah (PBUH) replied, "Allah.'' As soon as he said this, the sword fell down from his hand and Messenger of Allah (PBUH) catching the sword, asked him, "Who will protect you from me.'' He said, "Please forgive me.'' Messenger of Allah (PBUH) said, "On condition you testify that there is none worthy of worship but Allah and that I am His Messenger.'' He said, "No, but I promise you that I shall not fight against you, nor shall I be with those who fight with you". The Prophet (PBUH) let him go. He then went back to his companions and said: "I have come to you from one of the best of mankind".
وفي رواية : قال جابر: كنا مع رسول الله صلى الله عليه وسلم بذات الرقاع: فإذا أتينا على شجرة ظليلة تركناها لرسول الله صلى الله عليه وسلم، فجاء رجل من المشركين، وسيف رسول الله صلى الله عليه وسلم معلق بالشجرة، فاخترطه فقال : تخافني؟ قال: لا قال : فمن يمنعك مني ؟ قال: الله .
وفي رواية أبي بكر الإسماعيلى في صحيحه: قال: من يمنعك مني؟ قال : الله قال: فسقط السيف من يده، فأخذ رسول الله صلى الله عليه وسلم السيف فقال: من يمنعك مني؟ فقال كن خير آخذ، فقال تشهد أن لا إله إلا الله ، وأني رسول الله؟ قال: لا، ولكني أعاهدك أن لا أقاتلك ولا أكون مع قوم يقاتلونك، فخلى سبيله، فأتى أصحابه فقال: جئتكم من عند خير الناس.
| Reference | : Riyad as-Salihin 78 |
| In-book reference | : Introduction, Hadith 78 |
| Grade: | Da'if Isnād (Zubair `Aliza'i) |
| Reference | : Ash-Shama'il Al-Muhammadiyah 10 |
| In-book reference | : Book 1, Hadith 9 |
| Grade: | Hasan Isnād (Zubair `Aliza'i) |
| Reference | : Ash-Shama'il Al-Muhammadiyah 211 |
| In-book reference | : Book 31, Hadith 7 |
| Reference | : Al-Adab Al-Mufrad 101 |
| In-book reference | : Book 6, Hadith 1 |
| English translation | : Book 6, Hadith 101 |
| Sunnah.com reference | : Book 2, Hadith 137 |
| English translation | : Book 2, Hadith 263 |
| Arabic reference | : Book 2, Hadith 265 |