A lady committed theft during the lifetime of Allah's Apostle in the Ghazwa of Al-Fath, ((i.e. Conquest of Mecca). Her folk went to Usama bin Zaid to intercede for her (with the Prophet). When Usama interceded for her with Allah's Apostle, the color of the face of Allah's Apostle changed and he said, "Do you intercede with me in a matter involving one of the legal punishments prescribed by Allah?" Usama said, "O Allah's Apostle! Ask Allah's Forgiveness for me." So in the afternoon, Allah's Apostle got up and addressed the people. He praised Allah as He deserved and then said, "Amma ba'du ! The nations prior to you were destroyed because if a noble amongst them stole, they used to excuse him, and if a poor person amongst them stole, they would apply (Allah's) Legal Punishment to him. By Him in Whose Hand Muhammad's soul is, if Fatima, the daughter of Muhammad stole, I would cut her hand." Then Allah's Apostle gave his order in the case of that woman and her hand was cut off. Afterwards her repentance proved sincere and she got married. `Aisha said, "That lady used to visit me and I used to convey her demands to Allah's Apostle."

The tradition mentioned above (No. 4401) has also been transmitted by Ubadah ibn as-Samit through a different chain of narrators.

This version has: The people said to Sa'd ibn Ubadah: AbuThabit, the prescribed punishments have been revealed: if you find a man with your wife, what will you do?

He said: I shall strike them with a sword so much that they become silent (i.e. die). Should I go and gather four witnesses? Until that (time) the need would be fulfilled.

So they went away and gathered with the Messenger of Allah (saws) and said: Messenger of Allah! did you not see AbuThabit. He said so-and-so.

The Messenger of Allah (saws) said: The sword is a sufficient witness. He then said: No, no, a furious and a jealous man may follow this course.

Abu Dawud said: This tradition has been transmitted by Waki' from al-Fadl b. Dilham from al-Hasan, from Qabisah b. Huraith, from Salamah b. al-Muhabbaq, from the Prophet (saws). And this is the chain of the tradition narrated by Ibn al-Muhabbaq to the effect that a man had sexual intercourse with a slave girl of his wife.

Abu Dawud said: Al-Fadl b. Dilham was not the memoriser of traditions. He was a butcher in Wasit.

Yahya said that Malik related from Muhammad ibn Umara from Abu Bakr ibn Hazm that Uthman ibn Affan said, "When boundaries are fixed in land, there is no pre-emption in it. There is no pre-emption in a well or in male palm trees. "

Malik said, "This is what is done in our community."

Malik said, "There is no pre-emption in a road, whether or not it is practical to divide it."

Malik said, "What is done in our community is that there is no pre- emption in the courtyard of a house, whether or not it is practical to divide it."

Malik spoke about a man who bought into a shared property provided that he had the option of withdrawal and the partners of the seller wanted to take what their partner was selling by pre-emption before the buyer had exercised his option. Malik said, "They cannot do that until the buyer has taken possession and the sale is confirmed for him. When the sale is confirmed, they have the right of pre-emption."

Malik spoke about a man who bought land and it remained in his hands for some time. Then a man came and saw that he had a share of the land by inheritance. Malik said, "If the man's right of inheritance is established, he also has a right of preemption. If the land has produced a crop, the crop belongs to the buyer until the day when the right of the other is established, because he has tended what was planted against being destroyed or being carried away by a flood."

Malik continued, "If the time has been long, or the witnesses are dead or the seller has died, or the buyer has died, or they are both alive and the basis of the sale and purchase has been forgotten because of the length of time, pre- emption is discontinued. A man only takes his right by inheritance which has been established for him. If his situation differs from this, because the sale transaction is recent and he sees that the seller has concealed the price in order to sever his right of pre- emption, the value of the land is estimated, and he buys the land for that price by his right of pre-emption. Then the buildings, plants, or structures which are extra to the land are looked at, so he is in the position of some one who bought the land for a known price, and then after that built on it and planted. The owner of pre-emption takes possession after that is included."

Malik said, "Pre-emption is applied to the property of the deceased as it is applied to the property of the living. If the family of the deceased ...

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 ...

Malik related to me that he heard that Umm Salama, the wife of the Prophet, may Allah bless him and grant him peace, made a settlement with her mukatab for an agreed amount of gold and silver.

Malik said, "The generally agreed on way of doing things among us in the case of a mukatab who is shared by two partners, is that one of them cannot make a settlement with him for an agreed price according to his portion without the consent of his partner. That is because the slave and his property are owned by both of them, and so one of them is not permitted to take any of the property except with the consent of his partner. If one of them settled with the mukatab and his partner did not, and he took the agreed price, and then the mukatab died while he had property or was unable to pay, the one who settled would not have anything of the mukatab's property and he could not return that for which he made settlement so that his right to the slave's person would return to him. However, when someone settles with a mukatab with the permission of his partner and then the mukatab is unable to pay, it is preferable that the one who broke with him return what he has taken from the mukatab for the severance and he can have back his portion of the mukatab. He can do that. If the mukatab dies and leaves property, the partner who has kept hold of the kitaba is paid in full the amount of the kitaba which remains to him against the mukatab from the mukatab's property. Then what remains of property of the mukatab is between the partner who broke with him and his partner, according to their shares in the mukatab. If one of the partners breaks off with him and the other keeps the kitaba, and the mukatab is unable to pay, it is said to the partner who settled with him, 'If you wish to give your partner half of what you took so the slave is divided between you, then do so. If you refuse, then all of the slave belongs to the one who held on to possession of the slave.' "

Malik spoke about a mukatab who was shared between two men and one of them made a settlement with him with the permission of his partner. Then the one who retained possession of the slave demanded the like of that for which his partner had settled or more than that and the mukatab could not pay it. He said, "The mukatab is shared between them because the man has only demanded what is owed to him. If he demands less than what the one who settled with him took and the mukatab can not manage that, and ...