those contracts which he considers objectionable at the outset but which, once concluded, remain valid while the condition is void. Contracts containing conditions fall into three categories.

In the first, both the contract and the condition are void. This is where the stipulated condition is invalid and affects the price, as when someone sells an animal on condition that he may ride it on a long journey, and similar cases. In the second, both the sale and the condition are valid. This is where the stipulated condition is lawful and does not introduce uncertainty into the sale or any defect affecting the price or the item sold, as when someone sells an animal on condition that he may ride it for a day or two, and similar cases. In the third, the sale is valid but the condition is void. This is where the condition is invalid but so minor that it is not considered to have caused any reduction or increase in the price. Examples include selling an item on condition that, unless the buyer brings the price within two or three days, there will be no sale between them; or selling fruit on condition that the buyer may make no claim against the seller for a calamity if one befalls it, and similar cases.

He regarded the condition in the hire contract under discussion as belonging to this third category. His assessment was that the worker had stipulated that the owner of the spring would break through any rock encountered, while both parties considered it most likely that there was no rock there, since rock was rare in that location, as was known when the site was selected. The worker had therefore made no reduction in his fee on account of this condition, nor had it affected the fee. Accordingly, Mālik upheld the contract once it had been concluded and struck out the condition, although he considered entering into it objectionable. Likewise, he upheld a sale concluded on condition that the right to claim for calamity damage was waived, but voided that condition, since he did not consider it to have affected the price: freedom from such calamities is the more likely outcome.

When the worker broke through the rock he encountered in the ground, despite having stipulated that this was the spring owner’s responsibility, he wanted the owner to excavate an equivalent amount for him elsewhere, while he himself remained entitled to his entire fee under their agreement. Mālik—may Allah have mercy on him—did not accept this. Rather, he held that the condition was void and that entering into a contract on that basis was objectionable, as we have explained. He therefore said to them, “You have entered into a transaction in which there is no good. In my view, you are liable for”—meaning the owner of the spring—“the amount corresponding to that section of ground.” He meant the value of excavating the section which the man—that is, the worker—had broken through, although he had not been obliged to do so, since he had stipulated that this was the spring owner’s responsibility.

According to their legal principles, this applies if the owner of the spring is someone who hires others to break through such rock, rather than undertaking it himself with his slaves. Mālik—may Allah have mercy on him—did not state the full ruling in