in such a way that, for the father, it is like things freely available to all that become property through taking possession, while the son’s ownership of it remains established, such that he may dispose of it without restriction.

Since ownership takes various forms and is subject to degrees of freedom and restriction—both those I have described and those I have not—there is nothing to preclude leaving the establishment of such rights to the individual. He may establish whatever form he considers beneficial to himself and refrain from establishing what offers him no benefit. The Lawgiver prohibits only that which entails pure or preponderant harm. If it entails no harm, or if its harm is outweighed by its benefit, the Lawgiver never prohibits it.

[Chapter: The Fourth Principle—A Stipulation Made Before a Contract Is Equivalent to One Made Contemporaneously with It]

Chapter

The fourth principle is that a stipulation made before a contract is equivalent to one made contemporaneously with it. This is the apparent position of the hadith jurists, including Ahmad and others, and of the scholars of Medina, including Mālik and others. It is also one position in the school of al-Shāfiʿī, which he expressly affirmed regarding a privately agreed and publicly declared dower. His followers extended this ruling to a prior stipulation requiring an intervening marriage intended to make a woman lawful again for her former husband, and to other cases.

The well-known position in his school and that of Abū Hanīfa, however, is that a prior stipulation has no legal effect. Rather, they regard it as an unqualified promise whose fulfillment is recommended. This is also one position in the school of Ahmad, preferred by some of his followers in certain cases. Thus, some of them held that a stipulation made before the contract requiring such an intervening marriage has no effect unless the husband intends that purpose when the marriage contract is concluded. Likewise, a large group held—on the basis of what they transmitted from Ahmad—that a prior stipulation concerning the dower has no effect; only the amount specified in the contract has legal effect.

Some of Ahmad’s followers, such as al-Qādī Abū Yaʿlā, distinguish between a prior stipulation that negates the purpose of the contract and one that merely restricts it. If it negates the contract’s purpose—as when the parties collude beforehand to make the contract a sham or an intervening marriage intended solely to make the woman lawful again—it renders the contract void. If it merely restricts that purpose—as when they stipulate that the dower will be less than the stated amount—it has no effect on the contract. However, the well-known position in