a group of the followers of Mālik and Ahmad. Ahmad sometimes explains a contract’s invalidity by the absence of any transmitted report or analogy supporting it, as he did in one of the two positions reported from him concerning a person’s establishing an endowment for his own benefit.
Likewise, some of his followers explain the invalidity of stipulations by their conflicting with what the contract entails. They say: “Whatever conflicts with what the contract entails is invalid.”
The literalists, for their part, recognize no contract or stipulation as valid unless its permissibility is established by a scriptural text or consensus. Where its permissibility is not established, they declare it invalid and maintain the preceding legal ruling. They apply this consistently, but in many instances arrive at positions that others reject.
As for Abū Hanīfa, his principles entail that he does not recognize contractual stipulations that conflict with what the contract ordinarily entails when unqualified. He recognizes a stipulation concerning the subject matter of a contract only when that contract is capable of rescission. Thus, he held it invalid to stipulate in a sale an option to rescind—and, in his view, delivery of the item sold may not be delayed under any circumstances. For this reason, he prohibited selling property that is under lease. If someone purchases a tree bearing fruit that belongs to the seller, the purchaser may demand that the seller remove it. He permitted a lease commencing at a later date only because, in his view, a lease does not confer ownership until the benefit becomes available—or to stipulate the emancipation of the slave sold, or the use of him, or that the purchaser may leave the fruit on the trees, together with all the other stipulations that others invalidate.
He recognized no stipulation in marriage as valid at all, because, in his view, marriage is not subject to rescission. Thus, according to him, it is not dissolved on account of a defect, insolvency, or the like, nor is it invalidated by stipulations