Built-in Liability Agreements

3 Yahya related from Malik from 'Abdullah ibn Abi Bakr ibn Muhammad ibn 'Amr ibn Hazm that Aban ibn 'Uthman and Hisham ibn Isma'il used to mention in their khutbas built-in liability agreements in the sale of slaves, covering both a three day period and a similar clause covering a year.

Malik explained, " The defects a slave or slave-girl is found to have from the time they are bought until the end of the three days are the responsibility of the seller. The year agreement is to cover insanity, leprosy, and loss of limbs due to disease. After a year, the seller is free from any liability."

Malik said, " An inheritor or someone else who sells a slave or slave-girl without any such in-built guarantee is not responsible for any fault in the slave and there is no liability agreement held against him unless he was aware of a fault and concealed it. If he was aware of a fault, the lack of guarantee does not protect him - the purchase is returned. In our view, built-in liability agreements only apply to the purchase of slaves."

Defects in Slaves

4 Yahya related from Malik from Yahya ibn Sa'id from Salim ibn 'Abdullah that 'Abdullah ibn 'Umar sold one of his slaves for eight hundred dirhams with the stipulation that he was not responsible for defects. The person who bought the slave complained to 'Abdullah ibn 'Umar that the slave had a disease which he had not told him about. They argued and went to 'Uthman ibn 'Affan for a decision. The man said, " He sold me a slave with a disease which he did not tell me about." 'Abdullah said, " I sold to him on the stipulation that I was not responsible." 'Uthman ibn 'Affan decided that 'Abdullah ibn 'Umar should take an oath that he had sold the slave without knowing that he had any disease. 'Abdullah ibn 'Umar refused to take the oath, so the slave was returned to him and recovered his health in his possession. 'Abdullah sold him afterwards for 1500 dirhams.

Malik said, " The generally agreed-upon way of doing things among us about a man who buys a female slave and she becomes pregnant, or who buys a slave and then frees him, or if there is any other such matter which has already happened so that he cannot return his purchase, and a clear proof is established that there was a fault in that purchase when it was in the hands of the seller or the fault is admitted by the seller or someone else, is that the slave or slave-girl is assessed for its value with the fault it is found to have had on the day of purchase, and the buyer is refunded, from what he paid, the difference between the price of a slave when sound and his price with that defect."

Malik said, " The generally agreed-upon way of doing things among us regarding a man who buys a slave and then finds that the slave has a defect for which he can be returned and meanwhile another defect has happened to the slave whilst in his possession, is that if the defect which occurred to the slave in his possession has harmed him, like the loss of a limb, loss of an eye, or something similar, then he has a choice. If he wants, he can have the price of the slave reduced commensurate with the defect (he bought him with) according to the prices on the day he bought him, or, if he likes, he can pay compensation for the defect which the slave has suffered in his possession and return him. The choice is up to him. If the slave dies in his possession, the slave is valued with the defect which he had on the day of his purchase. It is seen what his price would really have been. If the price of the slave on the day of his purchase without fault was one hundred dinars, and his price on the day of purchase with fault would been eighty dinars, then the price is reduced by the difference. These prices are assessed according to the market value on the day the slave was purchased."

Malik said, " The generally agreed-upon way of doing things among us is that, if a man returns a slave-girl in whom he has found a defect and he has already had intercourse with her, he must pay what he has reduced of her price if she was a virgin. If she was not a virgin, there is nothing against his having had intercourse with her because he had charge of her."

Malik said, " The generally agreed-upon way of doing things among us regarding a person, whether he is an inheritor or not, who sells a slave, slave-girl or animal, which is meant to be free of defects, is that he is not responsible for any defect in what he sold unless he knew about the fault and concealed it. If he knew that there was a fault and concealed it, his declaration that it was free of faults does not absolve him, and what he sold is returned to him."

Malik spoke about a situation where a slave-girl was bartered for two other slave-girls and then one of the slave-girls was found to have a defect for which she could be returned. He said, " The slave-girl worth two other slave-girls is valued for her price. Then the other two slave-girls are valued, ignoring the defect which one of them has. Then the price of the slave-girl sold for two slave-girls is divided between them according to their prices so that the proportion of each of them in the price is arived at - to the higher-priced one according to her higher price, and to the other according to her value. Then one looks at the one with the defect, and the buyer is refunded according to the amount her share is affected by the defect, be it little or great. The price of the two slave-girls is based on their market value on the day that they were bought."

Malik spoke about a man who bought a slave and hired him out on a long-term or short-term basis and then found out that the slave had a defect which necessitated his return. He said that if the man returned the slave because of the defect, he kept the hire and the revenue. " This is the way in which things are done in our city. That is because had the man bought a slave who then built a house for him, and the value of the house was many times the price of the slave, and he then found that the slave had a defect for which he could be returned, he would not have to make payment for the work the slave had done for him. Similarly, he would keep any revenue from hiring him out because he had charge of him. This is the way of doing things among us."

Malik said, " The way of doing things among us when someone buys several slaves in one lot and then finds that one of them has been stolen, or has a defect, is that he looks at the one he finds has been stolen or the one in which he finds a defect. If he is the pick of those slaves, or the most expensive, or it was for his sake that he bought them, or he is the one in whom people see the most excellence, then the whole sale is returned. If the one who is found to be stolen or to have a defect is not the pick of the slaves, and he did not buy them for his sake, and there is no special virtue which people see in him, the one who is found to have a defect or to have been stolen is returned as he is, and the buyer is refunded his portion of the total price."

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