by Allah—fall into four categories.
(The first) comprises stipulations that require the sale to be rescinded in all circumstances, with neither party having the option of upholding it. If the goods remain available for restitution, those very goods must be returned. If they are no longer available, the sale is upheld at their assessed value, whatever it may be, whether higher or lower than the agreed price. This category includes any stipulation that causes the sale to breach a requirement for the contract’s validity, such as freedom from usury and uncertainty in the price or the subject matter, and similar requirements.
(The second) comprises stipulations for which the sale must be rescinded so long as the party imposing the stipulation insists upon it. If that party agrees to waive it, the sale is valid, provided the goods remain available for restitution. If they are no longer available, either the lower of the agreed price and the assessed value is due, or the higher of the assessed value and the agreed price, according to the explanation given earlier concerning sales with stipulations.
(The third) comprises cases in which both the sale and the stipulation are valid. This applies when the stipulation is itself valid and does not introduce uncertainty or invalidity into the price or the subject matter, or otherwise breach any requirement for the sale’s validity. Examples include selling a house while stipulating the right to live in it for a specified number of months; selling a riding animal while stipulating the right to ride it for a few days or to a nearby place; or imposing a stipulation already required by law, and similar cases.
(The fourth) comprises cases in which the sale is valid but the stipulation is annulled. Here the stipulation is invalid, but is so minor that no portion of the price is attributable to it. An example is selling goods on condition that, if the buyer does not bring the price within three days or thereabouts, there will be no sale between them. Another is purchasing an orchard subject to a disclaimer of liability for crop damage caused by a calamity. Even if the buyer waived his right to compensation after the sale became binding, that waiver would not bind him, because he would have waived a right before it accrued. Thus, stipulating its waiver in the sale contract did not, in his view, affect his share. Such crop damage is uncommon, so no portion of the price was attributable to that stipulation. Nor was the stipulation binding, since such a waiver does not become binding until the right to claim compensation for the crop damage has accrued. Similar cases follow the same rule.
This, then, is Mālik’s position—may Allah Most High have mercy on him—concerning stipulations attached to sales. Under this classification, the reports from the Prophet, may Allah bless him and grant him peace, on this subject do not conflict, contrary to the position adopted by the scholars of Iraq.
It is reported that ʿAbd al-Wārith ibn Saʿīd said: “I arrived in Mecca and found Abū Hanīfa, Ibn Abī Laylā and Ibn Shubruma there—may Allah be pleased with them all. I asked Abū Hanīfa, ‘What do you say about a man who concludes a sale and attaches a stipulation?’ He replied, ‘The sale is invalid and the stipulation