it would entail the right to take her back. This would negate the meaning of securing release for compensation, and it is contrary to consensus. For we know of those who have said that, in khulʿ concluded without additional stipulations, the husband owns the compensation and retains the right to take her back. Some, however, have said that it is not binding: if he wishes, he may return the compensation and take her back.

The scholars disagreed over whether it is valid to stipulate the right to take her back while receiving compensation. There are two opinions, both reported from Mālik. The position of Abū Hanīfa and al-Shāfiʿī, also held by the later scholars of Ahmad’s school, is that combining the two is invalid. Some of these scholars uphold the obligation to pay compensation but reject the right to take her back; others affirm that right but invalidate the compensation. These are two opinions within the schools of Ahmad and al-Shāfiʿī, although no explicit statement from Ahmad on this matter has been transmitted.

Reasoning by analogy from Ahmad’s school would establish its validity with this stipulation, just as when a woman offers money on condition that she be given control over her own marital status. He explicitly permitted that. Moreover, his governing principle is that contractual stipulations are permissible unless evidence from the revealed law establishes their invalidity. In his view, an invalid stipulation is not simply one that departs from what a contract would ordinarily entail in the absence of stipulations. Rather, it is one that conflicts with the Lawgiver’s purpose and contradicts His ruling, such as stipulating that the right of patronage belong to someone other than the emancipator, or that the seller retain the right to intercourse even though ownership belongs to the purchaser, and similar stipulations.

Furthermore, distinguishing between one wording and another in khulʿ is an unprecedented position, unknown from any of the early generations: the Companions, their Successors, or those who followed them. Al-Shāfiʿī—may Allah be pleased with him—did not transmit it from anyone. Rather, he stated that he thought the Companions made such a distinction. Clearly, this does not constitute transmitting the opinion of any member of the early generations.

Al-Shāfiʿī mentioned this in Ahkām al-Qurʾān (The Legal Rulings of the Quran), where he preferred the position that khulʿ is a divorce, not an annulment. He therefore did not accept the latter position because of what he considered an inconsistency among its proponents: namely, that when expressed in one wording, they treat it as an irrevocable divorce counting as one of the three