would not be permissible, because it is a stratagem to sell one hundred sāʿ of high-quality wheat for two hundred sāʿ of inferior wheat. This is unlawful because it is usury, for wheat exchanged for wheat must be equal in quantity.
The view we have deemed strongest is the one that accords with the principles of the Sacred Law. It is the position of Imam Malik, and Imam Malik’s school in matters of financial transactions is the closest of the schools to the sunnah. You will hardly find a view of Imam Malik concerning transactions without finding a narration from Imam Ahmad himself that agrees with Malik’s position. Yet it is well known that as the number of adherents within the schools increased, the view held by the greater number came to be treated as the school’s official position; this is generally the case. Therefore, we cannot say, for example, that Imam Ahmad’s school holds this sale to be prohibited and that only one narration is reported from him. Rather, there must be a narration from him agreeing with what the sound evidence indicates. Imam Malik’s position on this issue is the best and the strongest of the schools’ positions. We have an established principle: “The basic rule in financial transactions is permissibility, unless evidence establishes prohibition.”
“If he stipulates that he is not to bear any loss; or that, if the item sold does not sell, he may return it; or that he may neither sell it, nor gift it, nor manumit it; or that, if he manumits it, then the right of clientage belongs to him, …”
His statement, “If he stipulates that he is not to bear any loss”: this is the second category, namely, an invalid condition that does not invalidate the contract. Thus, the condition is invalid, while the contract remains valid.
Its criterion is that the defect pertains exclusively to the condition, because it conflicts with what the contract entails.
An example is the stipulation that he is not to bear any loss. The one making the stipulation is the buyer. The buyer says: “I bought it from you for one hundred thousand, on condition that I bear no loss”—meaning, if the market declines and he sells it for less, he bears no loss; rather, the loss is borne by the seller. This condition is invalid because it conflicts with what the contract entails, because