the three-day warranty period—and Allah knows best. This is the well-known position of Mālik and his followers—may Allah have mercy on them. Another view holds that the stipulation is void but the sale valid; this opinion appears in the book of Muhammad—may Allah have mercy on him. Ibn ʿAbd al-Hakam held that both the stipulation and the sale are valid, by analogy with Mālik’s eventual acceptance of exemption from liability for insanity, leprosy, and vitiligo, after previously holding that exemption from liability for serious conditions was impermissible.
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If he sells her on condition that custodial placement be waived, the sale is valid but the stipulation is void. Custodial placement is imposed upon both parties, and she is removed from the purchaser’s possession and placed in custody. If she dies in the purchaser’s possession before this arrangement is discovered, after sufficient time has elapsed to establish that she is not pregnant, the loss falls on the purchaser. According to Ibn al-Mawwāz and Ibn Habīb, this period is one month if the timing of her menstruation is unknown, since a month is the usual menstrual cycle among women. If the timing of her menstruation is known, the corresponding period applies.
If she dies before sufficient time has elapsed to establish that she is not pregnant, liability rests with the seller. This is Mālik’s view—may Allah have mercy on him—in al-Mudawwana, and Ibn Habīb reports the same in al-Wādiha. In al-Mabsūt by Ismāʿīl al-Qādī, it is reported from Mālik—may Allah have mercy on them both—that, in a sale concluded on these terms, the loss falls on the purchaser if she dies in his possession after the three-day warranty period has expired. The reasoning behind this latter view is that this stipulation does not invalidate the sale and is therefore given effect until a ruling annuls it. The reasoning behind the first view is that the stipulation is invalid and must be annulled, so it is not binding even before its annulment.
Abū Bakr al-Abharī held that a sale conditional upon waiving custodial placement is invalid. A similar opinion appears in the book of Ibn al-Mawwāz. According to Ibn ʿAbd al-Hakam’s position, however, the sale is valid and the stipulation binding. If, on the other hand, the seller hands her over to the purchaser out of ignorance of the procedure for custodial placement, without stipulating that it be waived, the sale is valid by agreement, and she is removed into custodial placement. If he sells her and disclaims liability for her pregnancy while acknowledging having had intercourse with her, al-Mudawwana treats the sale as invalid. Ibn Habīb, however, held that it is not invalid and that she is to be placed in custody.
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If, after purchasing her subject to custodial placement and concluding a valid sale, the purchaser wishes to waive custodial placement and accept the enslaved woman even if she is pregnant, Ibn al-Qāsim holds that he may do so, even against the wishes of