Explanation of the author's statement: "Or if he frees him, then the wala' belongs to him, or if he does that, the condition alone is invalid, except if he conditions the freeing."
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The Shaykh : He says "Or" this is the beginning of the lesson, now "or if he conditions that he frees him or he is freed, then the wala' belongs to him" meaning to the seller, for the condition is not valid. That is, the seller sold the slave to a person and conditioned that the wala' belongs to him, meaning to the seller. Here, the contract is valid and the condition is not valid. The evidence for this is the hadith of Aisha (may Allah be pleased with her) regarding the story of Barira, where Barira's people manumitted her by contract, so she came to seek Aisha's help. Aisha said, "If they wish, I will pay their price for her and the wala' will be mine, so I will do it." Barira went to her people and they said, "No, the wala' is ours." The Prophet (peace and blessings be upon him) said, "Take her and condition the wala' for them." She did so. Then he stood and addressed the people, saying Sunan al-Bayhaqi 5:400 So he approved the sale but did not approve the condition. What is wala'? Wala' means that when a person frees a slave, he becomes like one of his relatives. It is narrated from the Prophet (peace and blessings be upon him) that he said Bulugh al-Maram 15:12 The freed slave inherits from him if he has no heir by kinship. Even if a person dies leaving behind a full sister and a freed slave, who gets the money? The money goes to the freed slave, even though the deceased was her uncle, but she is not an heir with a fixed share nor a residuary heir, so the money goes to the master who freed him. In reality, wala' is a bond like the bond of kinship; it establishes what kinship establishes regarding inheritance and guardianship and the like, in the absence of a residuary heir by kinship. But it is not like kinship in establishing the prohibition of marriage. For this reason, the Prophet (peace and blessings be upon him) freed Safiyyah and made her freedom her mahr and married her. Yes, good. He says "or if he does that".
The questioner : ... .
The Shaykh : This and that are valid. He said "or if he does that" and what is the meaning of "that" which is referred to?
The questioner : It means that he sells.
The Shaykh : That he sells or gives as a gift or frees him. "That he does that" He said, "I sold you this slave for such and such, on the condition that you sell him." That you sell him to so-and-so. Here, the condition is not valid, because the implication of the contract is that the buyer is free to dispose of it as he wishes; if he wishes, he sells, and if he wishes, he does not sell. Can we say, as we said in the first case, that if there is a valid purpose for the seller, there is no harm? We say that if a valid purpose can be found, there is no harm, because the right of disposal belongs to whom?
The questioner : To the buyer.
The Shaykh : To the buyer. So if he waives it, it is his right. But the question remains: is there a valid purpose that corresponds to the buyer waiving the right of disposal? Perhaps there is. Perhaps that is like if I have a slave and I know that so-and-so will never buy it from me, either out of compassion for me or for some other reason, so I sold it to another and said, "On the condition that you sell it to so-and-so." On the condition that you sell it to so-and-so. This is a valid purpose, because I want to be kind to so-and-so with it, but I know that if it came to him from my path, he would not take it. But if it came from another path, he might accept it. So if there is a valid purpose, the correct view is that there is no harm in the seller conditioning on the buyer that he sell it. But the valid purpose here is only for a specific person, not for the sale in general. Likewise, if he conditions that he give it as a gift, we say this condition is defective. If he conditions that he free him, the author says "except if he conditions the freeing". This is an exception. So if he sold the slave to a person and said, "On the condition that you free him," and he agreed, then the sale and the condition are valid. Why? He says because the Lawgiver has a preference for freeing slaves. If a person says, "Why did the seller not free him? Why does he condition the buyer to free him instead of freeing him himself?" We say that the seller needs the money. He needs the money, and it is known that if he sells him with the condition of freeing, the price will decrease if he commits to this condition. So there is a benefit for the seller, which is satisfying his need for money, and a benefit for the buyer, which is the decrease in price. The price will decrease without a doubt. There is also a benefit that he gets the wala', because the buyer is the one who directly performs the freeing, so the wala' belongs to him. He said "except if he conditions the freeing". Good. If the buyer bought him and the freeing was conditioned on him, but he delayed and in the end refused, the author who is explaining says that he is forced to free him. The buyer is forced to free him because it was conditioned on him.
What is the matter with a group of people who impose conditions that are not in the Book of Allah? Any condition that is not in the Book of Allah is invalid, even if it is imposed a hundred times. The judgment of Allah is more worthy and the condition of Allah is more secure. And the wala' belongs to the one who frees.
ما بال أقوام يشترطون شروطا ليست في كتاب الله ما كان من شرط ليس في كتاب الله فهو باطل وإن شُرِط مائة مرة قضاء الله أحق وشرط الله أوثق وإنما الولاء لمن أعتقThe Wala’ (of a manumitted slave) is considered as one’s lineage
الولاء لُحمة كلُحمة النسبThe questioner : ... .
The Shaykh : This and that are valid. He said "or if he does that" and what is the meaning of "that" which is referred to?
The questioner : It means that he sells.
The Shaykh : That he sells or gives as a gift or frees him. "That he does that" He said, "I sold you this slave for such and such, on the condition that you sell him." That you sell him to so-and-so. Here, the condition is not valid, because the implication of the contract is that the buyer is free to dispose of it as he wishes; if he wishes, he sells, and if he wishes, he does not sell. Can we say, as we said in the first case, that if there is a valid purpose for the seller, there is no harm? We say that if a valid purpose can be found, there is no harm, because the right of disposal belongs to whom?
The questioner : To the buyer.
The Shaykh : To the buyer. So if he waives it, it is his right. But the question remains: is there a valid purpose that corresponds to the buyer waiving the right of disposal? Perhaps there is. Perhaps that is like if I have a slave and I know that so-and-so will never buy it from me, either out of compassion for me or for some other reason, so I sold it to another and said, "On the condition that you sell it to so-and-so." On the condition that you sell it to so-and-so. This is a valid purpose, because I want to be kind to so-and-so with it, but I know that if it came to him from my path, he would not take it. But if it came from another path, he might accept it. So if there is a valid purpose, the correct view is that there is no harm in the seller conditioning on the buyer that he sell it. But the valid purpose here is only for a specific person, not for the sale in general. Likewise, if he conditions that he give it as a gift, we say this condition is defective. If he conditions that he free him, the author says "except if he conditions the freeing". This is an exception. So if he sold the slave to a person and said, "On the condition that you free him," and he agreed, then the sale and the condition are valid. Why? He says because the Lawgiver has a preference for freeing slaves. If a person says, "Why did the seller not free him? Why does he condition the buyer to free him instead of freeing him himself?" We say that the seller needs the money. He needs the money, and it is known that if he sells him with the condition of freeing, the price will decrease if he commits to this condition. So there is a benefit for the seller, which is satisfying his need for money, and a benefit for the buyer, which is the decrease in price. The price will decrease without a doubt. There is also a benefit that he gets the wala', because the buyer is the one who directly performs the freeing, so the wala' belongs to him. He said "except if he conditions the freeing". Good. If the buyer bought him and the freeing was conditioned on him, but he delayed and in the end refused, the author who is explaining says that he is forced to free him. The buyer is forced to free him because it was conditioned on him.