He thus permitted the purchaser to stipulate an addition to what an unqualified contract entails, which is permissible by consensus. The two parties may also stipulate a reduction in what it includes by making an exception. Thus, the Prophet, may Allah bless him and grant him peace, prohibited “making exceptions unless they are clearly specified,” indicating that they are permissible when clearly specified. Likewise, Jābir reserved the right to ride his camel as far as Medina. To my knowledge, Muslims unanimously agree that it is permissible to reserve an undivided share—for example, to sell someone a house except for one-quarter or one-third of it. They also agree that a specified portion may be excluded if it can be separated without harm—for example, to sell the fruit of an orchard except that of certain specified date palms, or to sell clothing, slaves or livestock that both parties have seen, except for particular items or individuals that they have identified.
They disagreed, however, about reserving some of the benefits, such as living in the house for a month, retaining the slave’s services for a month, or riding the animal for a specified period or as far as a particular town. This is despite the agreement of the renowned jurists, their followers and the majority of the Companions that this may be beneficial. An example is purchasing a married slave woman: the right to marital intimacy with her, which belongs to her husband, is not included in the contract. Thus, ‘Ā’ishah purchased Barīrah while she was married. However, she purchased her on condition that she emancipate her, so the only disposal of her that she was entitled to make was emancipation, and emancipation does not conflict with her marriage.
For this reason, Ibn ‘Abbās, may Allah be pleased with him and his father—who was among those who narrated the hadith of Barīrah—held, along with a group of the Companions, that the sale of a slave woman constitutes her divorce. This was their interpretation of the words of Allah Most High:
“And married women, except those whom your right hands possess.”
They said: