whether it is lower or higher than the agreed price. This is also the apparent meaning of his report from him in the section on advance sales and deferred payments in al-‘Utbiyya. According to this view, the sale must be rescinded if the goods remain available for restitution, whether the parties agree or refuse.
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This report of Yahyā from Ibn al-Qāsim may reflect the position of those who regard sales with stipulations as invalid: they must be rescinded in all circumstances, and neither party has the option of upholding them. Alternatively, Ibn al-Qāsim may have regarded stipulating a loan in a sale as more serious than those other stipulations. The person stipulating the loan intends to benefit from it until the agreed date, but that benefit is indeterminate. This leads to uncertainty about the price if the seller stipulates the loan, or about the subject matter of the sale if the buyer stipulates it. Knowledge of both the price and the subject matter is a condition of a valid sale.
Yet in Ashhab’s report from Mālik—may Allah Most High have mercy on him—in the Book of Defects in al-‘Utbiyya, Mālik treated a sale combined with a loan more leniently than sales with stipulations. Concerning someone who sells a slave woman on condition that she become an umm walad—a slave woman who has borne her master a child—he said that the sale must be rescinded even if the seller agrees to waive the stipulation. Concerning someone who sells on condition of receiving a loan, however, he said that the sale is not rescinded if the seller agrees to forgo the loan.
According to this report, therefore, he did not consider that either party’s stipulating a loan from the other entailed uncertainty about either the price or the subject matter of the sale. He did not regard it as established that the person stipulating the loan intended to sell his goods in return for both the stated price and whatever profit he might make by using the loan. He might not want it for trading at all. His purpose might instead be to purchase an item to keep, a garment to wear, or food to eat; or to benefit another man by lending him the money, giving it to him as a gift, or giving it to him in charity; or to obtain some other comparable benefit from it.
For if a stipulation introduces uncertainty into the sale, or leaves the price or the subject matter unknown, the sale is invalid and must be rescinded in all circumstances. Neither party has the option of upholding it while the goods remain available for restitution. If they are no longer available, their assessed value is due, whatever it may be.
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We say this because the stipulations attached to sales, according to the school of Mālik—may he be shown mercy