Abū Ḥanīfah, many of al-Shāfiʿī’s foundational authorities, and a number of the early adherents of the schools of Mālik and Aḥmad.
The Ẓāhirīs, therefore, regard no contract or stipulation as sound unless its permissibility is established by an explicit text or by consensus.
As for Abū Ḥanīfah, his legal principles dictate that no contract or condition is valid if it contradicts what the contract itself entails. Al-Shāfiʿī agrees with Abū Ḥanīfah that every clause which conflicts with the essence of the contract is void, though he makes certain exceptions on the basis of specific evidence. A group of Aḥmad’s disciples concur with al-Shāfiʿī in the substance of these principles, yet they allow even more exceptions than he does.
These three schools differ from the Ẓāhirīs; because they employ analogy and the meanings they glean from the texts, they permit a wider range of conditions than the Ẓāhirīs do.
Their proofs are as follows:
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The Prophet ﷺ said, “Any condition that is not found in the Book of Allah is null and void.” Consequently, every stipulation that is neither in the Quran nor in the Sunnah, and concerning which the scholars have not reached consensus, must be rejected.
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They draw an analogy between all conditions that negate the effect of a contract and the stipulation concerning walāʾ (the bond of clientage). The common factor, they say, is that such conditions conflict with what the contract, by its very nature, brings about according to the Law. Changing what the Law has established in contracts is akin to altering acts of worship. This is the heart of the principle: contracts have been legislated in a particular form, so to stipulate something that opposes their essence is to alter what has been legislated.
The evidence for the second opinion is that the Quran and the Sunnah repeatedly command the fulfillment of covenants, pledges, conditions, and contracts, and the discharge of trusts. Since the genus of fulfillment and the observance of covenants is itself commanded, it follows that the default ruling concerning contracts and stipulations is their validity—for there would be no point in affirming the duty to fulfill them otherwise.