so binding him to it without those terms means binding him to a contract to which he did not consent. This runs contrary to the textual evidence and established principles. For this reason, it is impermissible to bind someone, in a sale, to something to which he did not consent.

Accordingly, Ahmad’s followers, such as Judge Abū Ya‘lā and others, said: If we uphold the sale while annulling the invalid stipulation, according to one of the two positions reported from him, the party who made that stipulation—if he did not know that it was prohibited—may rescind the contract or demand compensation for its nonfulfilment. They expressed a similar view concerning a valid stipulation that is not fulfilled. However, a valid stipulation must be fulfilled, just as a valid contract must be honoured. If it is not fulfilled, the stipulating party may rescind the contract in all cases, because he did not consent to it without that stipulation.

An invalid stipulation, by contrast, need not be fulfilled, just as an invalid contract need not be honoured. Nevertheless, the stipulating party may uphold the contract without it, or he may rescind the contract, just as when he stipulates a particular quality in the goods sold and they lack that quality, or when a defect is discovered in them.

Thus, concerning a sale containing an invalid stipulation, Ahmad—may Allah be pleased with him—holds that the sale is valid according to one of the two positions reported from him; indeed, this is the more explicit of the two reports. This is because the failure to meet a stipulation or a specified quality does not invalidate the sale, and the harm suffered by the stipulating party is remedied by releasing him from rescission, as when stipulated qualities are absent because of defects.

In marriage, however, stipulations are more binding. If someone stipulates a quality in either spouse, as with the stipulation most deserving of fulfilment, he has the right to rescind the marriage if that quality is absent, according to one of the two positions reported from Ahmad. This is also one of the two views associated with Mālik and al-Shāfi‘ī. Likewise, in Ahmad’s view, he may rescind the marriage because of defects that prevent the purpose of marriage from being fulfilled. … (1)

And he has the right to rescind. As for a marriage arranged to make a woman lawful again for her former husband, it is not intended for its own sake; and, in Ahmad’s view, the purpose behind contracts is taken into account. Temporary marriage is marriage for a specified term, whereas marriage cannot be made subject to a fixed term.