except a settlement that makes the unlawful lawful or the lawful unlawful.” Thus, whatever the parties to a settlement agree upon is permissible, provided it does not lead to making the unlawful lawful or the lawful unlawful. Scholars differed over such an unlawful settlement once concluded. One view is that it must be rescinded and reversed, not upheld; this is the position of the majority of scholars. Asbagh held that it is enforceable in court, although, as between himself and Allah, a party may take only what would be permissible in a sale. He supported this with the report that a settlement was brought before ‘Alī ibn Abī Tālib, who read it and said: “This is unlawful. Were it not a settlement, I would rescind it.”
The former view is sounder, being established by both the words and actions of the Prophet, peace be upon him. As for his words, it is related in an authentic collection that he said: “Whoever introduces into this matter of ours something that does not belong to it, it is rejected.” As for his actions and judgments, Mālik related in his Muwatta’, on the authority of Abū Hurayrah and Zayd ibn Khālid al-Juhanī: “Two men brought a dispute before the Messenger of Allah, may Allah bless him and grant him peace. One of them said, ‘O Messenger of Allah, judge between us according to the Book of Allah.’ The other said…”—the remainder of the hadith, up to his words: “As for your sheep and your slave girl, they are to be returned to you.” He, may Allah bless him and grant him peace, also invalidated every condition not in the Book of Allah: it is void, even if there are a hundred such conditions.
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A settlement consists of receiving something in exchange for consideration. It therefore resembles a sale and follows its rules in most respects. An unlawful arrangement should no more be upheld in a settlement than in a sale. There is no disagreement that a settlement concluded on terms unlawful for both parties must be rescinded. An example is when a man claims that another owes him ten dinars, and the latter acknowledges five but denies the remaining five, after which they settle the entire claim for dirhams payable at a future date, and similar cases.
The disagreement concerns only a settlement whose terms are unlawful for one party but not the other. An example is when a man claims that another owes him ten dinars, the latter denies the debt, and they settle the claim for dirhams payable at a future date. The claimant may not accept dirhams payable at a future date in exchange for ten dinars owed to him, whereas the defendant may