this case. Ibn al-Qāsim explained it according to his understanding of Mālik’s position—that the contract, once concluded, is upheld while the condition is voided—as we have explained. He said, “He means that one should determine what proportion of the work that section of ground represents, and refund a corresponding portion of what was received.” This means determining what proportion of the total five thousand cubits is represented by the rock the worker broke through, and refunding that proportion of the fee he received, since the condition is voided while the contract is upheld. There is no difference between the owner of the spring breaking through the rock himself and the worker breaking through it and receiving the remuneration due to him for doing so. If the remuneration due to the worker for breaking through the rock is of the same kind as the fee he received, he offsets it against the amount he must refund. Whichever party has a balance in his favour may recover it from the other. And success comes from Allah, glorified and exalted is He.
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Were it not for Ibn al-Qāsim’s interpretation of Mālik’s words—may Allah have mercy on him—the more apparent implication of his statement, “You have entered into a transaction in which there is no good,” would be that the contract is invalid. The worker would then be entitled to the customary remuneration for comparable work, both for breaking through the rock and for the rest of his work. He would refund the entire agreed fee if he had received it; otherwise, the obligation to pay it would lapse. Mālik spoke only about what was due to the worker for breaking through the rock, without stating the full ruling in the case. Nevertheless, Ibn al-Qāsim is better placed to explain Mālik’s intent here, since he discussed the matter with him directly.
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If, however, their hire contract stipulated that the owner of the spring would break through any rock encountered, and that the corresponding portion of their agreed fee would be deducted from the amount he owed, two positions may be derived concerning its permissibility when advance payment is not stipulated. The better-known position in the school is that it is permissible, because the rate is known, although the total price is unknown at the time the contract is concluded. This resembles selling an unmeasured heap on the basis of measurement, which Mālik—may Allah have mercy on him—and his companions permitted, but which ʿAbd al-ʿAzīz ibn Abī Salama prohibited. It also resembles hiring a worker to bring goods from a town, on condition that, if he finds them along the way, he returns and receives a proportionate fee. Mālik and Ibn al-Qāsim—may Allah Most High have mercy on them both—permitted this, whereas Sahnūn prohibited it. And among