that has been leased. If someone purchases a tree bearing fruit that belongs to the seller, he may require the seller to remove it. Abū Hanīfa permitted a lease commencing at a later date only because, in his view, a lease does not confer ownership of the usufruct until that usufruct comes into existence. He also permitted a stipulation requiring the emancipation of a sold slave or reserving the use of his services, as well as a buyer’s stipulation that the fruit remain on the tree and the other conditions that other jurists invalidate. He recognized no condition in marriage as valid at all, because, in his view, marriage is not subject to rescission. Accordingly, it is not dissolved on account of a defect, insolvency, or the like, nor is it ever invalidated by defective conditions. Abū Hanīfa recognized the three-day contractual option as valid only on the strength of the transmitted report; for him, this was a matter of juristic preference.

Al-Shāfi‘i agrees with him that every condition contrary to what a contract entails is invalid, but he makes exceptions in cases supported by specific evidence. Thus, he does not permit a contractual option lasting more than three days, nor the reservation of the sold property’s usufruct or anything similar that delays its delivery. Indeed, he even prohibited a lease commencing at a later date, because its legal consequence—taking possession—does not immediately follow the contract. Nor does he permit any condition that prevents the buyer from exercising an unrestricted right of disposition, except a condition requiring manumission, owing to the Sunnah and the rationale supporting it. He does, however, permit a usufruct to be reserved where authorized by revealed law, as in the sale of a leased asset—according to the sound position in his school—or the sale of a tree while the seller retains the right to harvest fruit that is entitled to remain on it, and similar cases.

In marriage, he permits some conditions but not others. He does not permit a woman to stipulate that she remain in her own home or town, or that her husband [not marry] another woman while married to her or take a concubine. It is permissible, however, to stipulate that she is free and Muslim. The same applies, according to the sound position in his school, to all other desired attributes, such as beauty and the like. He is also among those who hold that a marriage may be rescinded because of a defect or insolvency, and that it is dissolved by conditions incompatible with it, such as stipulating a fixed term, divorce, or a shighār (reciprocal exchange) marriage—unlike a defective dower and similar matters.