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The Rules for Ijtihad in the Jurisprudence of Transactions with a Focus on

the Maliki School of Law

Thanks to Allah, and may peace and the blessings of Allah be upon our Prophet
Muhammad s.a.w., his family and his Companions and those who follow him.

I am pleased to extend my deepest thanks and gratitude for those who organized
this intellectual discourse at the Islamic Development Bank in Jeddah and the
Islamic Research and Training Institute, for inviting me to this meeting, which is
on the rules of ijtihad in the Maliki School of Law in the jurisprudence of
transactions. May Allah make it beneficial and reward their efforts.

The importance of studying the rules of ijtihad [intellectual effort] in transactions

:‫أهمية االعتناء بضوابط االجتهادفي المعامــالت‬
The subject of ijtihad and its regulations in the jurisprudence of transactions is
critical to the present time, in light of significant developments in the financial
investment sector and in light of the challenges faced by the Islamic theory of
investment, which seeks cleaner investments, i.e. investments that comply with
the principles and spirit of the Shari’ah.

This requires the concerted efforts of scholars and their multiple contributions to
find legitimate alternatives, which are free from usury [riba] and the decadence of
corrupt contracts. The legitimate alternatives are not necessarily always the
easiest choice or the preferred choice or what the investors would wish for. In
fact, sometimes, it is cumbersome on the people. Indeed, if the easier choice is
in conformity with the truth [haq], then that is the right thing to do, as said by
Omar bin Abdul Aziz (may the Almighty's mercy be upon him). Otherwise, the
right rulings are the ones supported by legal evidence or proofs, rather than
driven by philosophy to facilitate.
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General rules and regulation in exercising ijtihad

:‫ضوابط عامة لالجتهاد‬
There are general rules for effective ijtihad to take place, which are not disputed
by the scholars in different sects and schools of jurisprudence.
To these scholars, the word ijtihad technically denotes the thorough exertion of a
jurist's mental faculty in finding a solution to a legal question, based on evidence
or proofs.

We can deduce from the above definition that the place of ijtihad is on the
speculative evidence [zaniat]. As such, there is no place for ijtihad to be
exercised on the definitive proofs [qat‟i], like the texts [nas] of the Quran and the
Hadith [mutawatir], which is conclusive in its indication and meanings. For
example, the prohibition of usury and the legality of sales in the words of the
Almighty God, "Allah has permitted trading and prohibited interest". For rulings
like this, Muslims are not allowed to exercise ijtihad because the injunctions are
self-evident and crystal clear and Muslims must follow it, as it is received. This
type of rulings [ahkam] is eternal and everlasting. It will not change depending on
the passage of time or the mujtahid (the one exercising ijtihad). It is incumbent
upon the mujtahid to implement the text, as evidenced by the explicit
pronunciation, and this type of evidence is the strongest evidence.

Generally, ijtihad can be applied in two types of evidence:

1. On the disagreed legal evidence [adila mukhtalaf fiiha], which is
presumptive or detailed evidence, either in terms of narration, or in terms
of significance, when the [al-ifez] expression is never likely to be
restrictive, or there is a probability that it could be particularized, [takhsis]
or the expression may be homonym [el-lefz el-mushtrak]. Most of the texts
indicated in Islamic law fall under the speculative evidence [zaniat], as we
have mentioned earlier, in order to stimulate the umma to strive and to
expand the scope of ijtihad and to open the doors of ijtihad to all and as
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such, the opinions of the scholars vary to a certain degree, to facilitate and
simplify for the umma and to minimize the hardships that they face; and
2. The second avenue for the mujtahid to exercise ijtihad is when there is no
text [nas] from the Quran or Sunnah on the legal issues. So, the role of the
mujtahid here is to exercise ijtihad either by using analogical reasoning on
evidence or by inference from other fundamental rules, i.e. by using the
principles of usul fiqh, like the presumption of continuity [al-istishab], or
reasoning based on unrestricted interest or by using valid customs. This
kind of ijtihad is known as ‘analogical ijtihad‟ or creative ijtihad [al-ijtihad
bil-ra’ayi].

Conditions of ijtihad: Between the past and the present

:‫شروط االجتهاد بين الحاضر والماضي‬
The conditions mentioned by the scholars, including Imam Shafii, as well as
other jurists like El-shatubi, even though it seems very hard to achieve and to
master it. But indeed it is now thank to God Almighty is more accessible than
ever before, because of the compilation of Islamic law books or dictionaries of
the Arabic language. These books have been studied extensively, catalogued
and good complementary has been made. And then, these books have been
compiled in huge computer disks, which made the information easily accessible.
This thus minimizes the burden faced by researchers, as they can access the
required information in a short time, with less effort on their part.

And the most vital two conditions mentioned by Al-Shafii in our time today, is the
use of equity [insaaf], and to be less talkative, and that the mujtahid should have
the faculty or talent that will qualify him to make perfect rulings by reasoning or
reflection.
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Iijtihad: Between modification and heritage limitation

: ‫االجتهاد بين التجديد والتقيد بالموروث‬
The faqih should not limit himself to the classical books but he should know and
comprehend the contemporary issues facing the umma and he must know the
objectives and the goals of the Shari’ah [maqasid al-shari’ah], in order to find
solutions to the challenges and the needs of the times. When we say limiting
ourselves to the classical books, we mean two things:
1. We should comply with the regulations and requirements that is in the
Quran and Sunnah. Likewise, we should pay due attention to the writings
of early Muslim scholars, whose recordings have been compiled and
accepted by scholars encompassing all ages; and
2. Secondly, it means that the faqih should not ignore the contemporary
writings of Muslim jurists, which has its roots in the Quran and Sunnah.

In the case of modification in ijtihad, it means taking into account the time factor
when issuing fatwa on current affairs, because fatwas are prone to changes, as
time goes by. The position of the majority of scholars, including Malikiya, in this
regard, is that we must adhere to the principles and the provisions of Islamic law
[Shari’ah], which is based on clear text [nas sarih]. This does not change
according to time or place. For example, the individual obligations [al-wajibat al-
einiya], outright prohibitions, fulfillment of contracts, avoiding gharar
[uncertainties in sale contract], eating people‟s wealth unjustly, the sanctity of
other human life, their blood and their honor. All these are called devotional
obligations [al-wajib el-taabudi] and its status would not change according to time
or place.

If people accepted riba, and they transact in a fraudulent way; they use bribery
and gamble, or Muslims live in a country that allows the above mentioned haram
activities and they don‟t observe the limits of Allah, then the rules of Allah does
not change, as it is never wrong. On the other hand, according to the majority of
scholars, ijtihad can change if it‟s not based on clear text or with explicit
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provisions that is if the mujtahid is enriched with the heritage of jurisprudence of

the different schools of thought and he should follow their approach in extracting
the rulings and ahkams. Those who carried the banner of this understanding
includes:
1. From the Maliki School of Law - Al-Qarafi and Al-Shatube;
2. From the Shafii School of Law – Ibnu Abdul Salam; and
3. From the Hanbali School of Law – Ibn Taymiya and Ibn Al-Qayim.

Some of the principles of the Maliki School of Law in financial transactions

Generally, the Maliki School of Law is built upon twenty principles, as stated by
Al-qarafi and others, namely:
1. Quranic text [nas quran] like this verse, “Allah has permitted trade and
forbidden usury.” (al-baqarah);
2. Zahir el-quran [Apparent meaning of the text];
3. Mafhum el-mukhalafa [the divergent meaning of text];
4. Mafhum el-awla [the harmonious meaning of text]; and
5. Tanbih el-khatab [the inferred meaning of the text].

These five principles can be applied on the text from the Sunnah [Prophetic
words], which consist of ten principles, as follows:
1. El-ijma’ - Consensus of opinion;
2. El-qiyas - Analogical deduction;
3. Amal ahl-el-medina - Consensus of the people of Medina;
4. Qowl-el-sahabi - Saying of a single companion;
5. Al-istihsan - Juristic preference;
6. Al-urf wal-adat - Valid customs or habits;
7. Al-maslaha el-mursalah - Unrestricted interest;
8. Saddu-dhra’i - Blocking pretense, means;
9. Al-istishab - Presumption of continuity. For example, in a court of law, the
judge can decide not to transfer the ownership of something from its
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owner without any adverse proofs, using the presumption of continuity;

and
10. Mura’atu el-khilaf - Taking into consideration the diverse opinions in
different schools of law.

The arrangement between these principles during its application is to put the
revelation first and other principles will follow when there is no substantive
evidence from the revelation.

The first principle in financial transactions is that the original status of any
financial transaction is one of permissibility
The fuqaha have unanimously agreed on this principle, Malikis and the non-
Malikis alike: that the original status of [ibadat] is impermissibility, unless
supported by legal evidence, while the original status of any transaction is
permissibility, unless there is evidence indicating to the contrary. In this regard,
we have many legal maxims concerning the issue of contracts, which includes
the original status of any contract, i.e. legally valid.

The second principle in prohibited transactions

The prohibition of transactions in the Maliki School of Law is due to the corruption
of contracts. The corrupt contract is the one which is invalidated by legal
evidence, due to inherent corruption. Likewise, contracts can be deemed invalid
because if the goods itself is prohibited, like the meat of pig, blood, dead animal,
alcohol and so on, then the contract is not valid.

The third principle is on the prohibition of transactions and its rationale

Transactions can be deemed invalid or null and void due to five reasons:
1. Due to the inclusion of riba, like borrowing money at an interest, or
financing a project which includes the element of gharar, such as
selling something that is not in one‟s possession;
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2. Due to the inclusion of gharar, [uncertainty about the outcome],

gambling and imminent risk, such as contract for commercial
insurance, awards for sales or competitions for prizes, which is only
acquired through reciprocated payments. All these contracts are
deemed invalid because of the element of gharar;
3. Transactions can be deemed invalid due to unfairness in dealing with
people‟s wealth, such as robbing wealth, deception, contracts involving
fraud, theft and stealing moral rights or stealing trademarks or brands;
4. Contracts can be deemed as void, due to deficiency in its pillars or the
lack of some essential conditions. Indeed, any transaction which has
not fulfilled all the basic requirements cannot be executed by Muslims;
and
5. Transactions can be deemed invalid if it violate the rights of Allah. For
instance, Allah has forbidden Muslims from engaging in any
transaction during the prayer time; so that it will not contravene the
rights of Allah (e.g. Muslims are not allowed to engage in any business
deals after the call for the Friday prayer).

Another example is the prohibition of selling or leasing a premise to a person

who in turn will use it as a night club or a church or a casino. All these
transactions are not allowed in Islam because when Allah forbids something, He
also forbids the usufruct of that item or its utility. The general principle in the
Maliki School of Thought is that the intention to deal in corrupt transactions is
haram, because it is prohibited by Allah.

The fourth principle: The determining factor in any contract depends on its
essence, not on its form
In the Maliki School of Law, it is said that contracts can take place without using
the explicit words for that particular contract, as long as people use an
expression which can serve the purpose of buying and selling. This is due to the
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legal maxim which has been agreed upon by scholars of different schools of
laws, which is:
The validity of all matters hinges on its purposes.
)‫(األمور بمقاصدها‬
The origin of this legal maxim is the saying of the prophet s.a.w., ” Actions are
considered right or wrong by intentions.”

The fifth principle is on the consensus of the people of Medina

The work or actions of the people of Medina is only considered valid evidence in
the Maliki School of Law when it can be traced back to the prophet s.a.w. For
example, the words of azan [call for prayer] can be traced back to the time of the
Prophet s.a.w. Likewise, we know that there is no zakah on vegetables and the
legal evidence for that is the action of the people Medina, because they were
vegetable farmers and they did not pay zakah on it.

The sixth principle is taking precautionary steps when dealing with contracts
If you follow the Maliki jurisprudence very closely, you will find the use of
precautionary measures more often, particularly when dealing with riba. For
example, one could find the use of many legal maxims in this regards, like this
one; any doubts about the similarities between two things is like being certain of
the existence of excess in one of them, which will ultimately lead to usury.

We can apply the above mentioned principle on several transactions in the

banking sector. For example, development loans given by some banks to the
beneficiary to purchase machinery and heavy equipment required for the
development of a certain project by hard currency, which the customer cannot
obtain in some countries. So, in such a case, the bank will sign a contract with
the customer, based on interest rate.

With the conclusion of this usury contract between the bank and the customer,
the latter will have the right to pay the loan with immediate cash free of interest if
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he wanted so, or sometimes, he can chooses to sign the contract with deferred
interest. Hence, this kind of usury contract between the customer and the bank
which allows the former the right to choose between prompt payment and
deferred interest will not make sense, and according to the majority of the
scholars in the Maliki School of Law, this kind of contract is null and void.

Another example on this principle is the usage of credit cards, which is issued by
banks to their customers, in which it is stipulated that if the customer pays all his
debt during a certain period, then the banks will not charge him any interest and
if he defaults the designated period, he have to pay interest. If the client signs
this contract with the determination to pay the bank on time, in order to avoid
riba, the this contract is deemed invalid due to the uncertainties surrounding it.

The seventh principle is: The expansion of the usage of blocking the means
Blocking the means is to prohibit something which is originally halal but will
ultimately lead to haram elements. The Maliki jurists expanded the use of this
principle to many transactions, to the extent that they outlawed the use tawarruq
and bay’ ’inah, in which most probably, people will tend to replace cash with
cash, which ultimately leads to usury.

According to the Maliki School of Law, bay‟ ‟inah is haram, because of two
things:
1. Firstly, due to the nature of 'inah itself; 'inah refers to the sell and buy back
or because the buyer of the deferred sale takes money instead of goods.
According to the Maliki jurisprudence, this kind of transaction is deemed
as using hilah or legal trick, which will ultimately lead to unlawful elements;
and
2. Secondly, the real intention of the seller is to get money, and the
superficial sale and buy back is just the means to justify the loan.
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Eighth principal: Conflict between logical analogy and singular-chain narration

According to the scholars of the Maliki School of Law and others, Imam Malik
preferred logical analogy (qiyas) over singular-chain narration (khabar al-wahid),
in the event where there is an absolute and unsolvable conflict between logical
syllogism and singular-chain narration. While commenting on what was narrated
on the authority of Mu‟awiyyah in Muwata‟ of selling gold more than its weight,
where he (Mu‟awiyyah) insisted on the permissibility of such sales, Abu al-Walid
al-Baji said, “It is possible that he prefers logical analogy over singular-chain
narration, which is similar to Imam Malik‟s opinion”.1

Though various writings that ascribed the opinion of preferring absolutely logical
analogy (qiyas) over singular-narration to Imam Malik, nonetheless, there are
those scholars who deny the idea of attributing such a notion to Imam Malik, and
insist that Imam Malik‟s position with regard to the relationship between logical
analogy (qiyas) and singular-narration is misunderstood and misrepresented.2
They mention a number of singular-chain narrations that was accepted by Imam
Malik, such as the Prophetic narration on washing dishes from lingers of dogs,
the narration of selling un-milked she-camel3 and the narration on the lucky-draw,
where the Prophet s.a.w. solved an issue of six slaves who were freed by their
master at the moment of their masters death while having no other wealth; after
the lucky-draw, the Prophet s.a.w. freed two of them (slaves) while the rest
remained as slaves.4

However, by observing a number of narrations that said Imam Malik rejected and
preferred logical analogy (qiyas) over singular-chain narrations, it is obvious that
Imam Malik did not reject the singular-chain narrations because of their conflict to
logical analogy (qiyas), but because according to him, such narrations did not
fulfill the necessary principles of Hadith authentication system, where such

1
Al-Muntafa, 4/262
2
See Hashiyat al-Rahawi Ala al-Manar, p.622, and Kashf al-Asrar, 2/377.
3
See Umdat al-Ahkam, Ibn Daqiq al-Id, 4/50.
4
The narration of the Lucky-draw was reported by Muslim, 5/97.
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singular narrations have conflicted with certain principles, such as „elevation or

easing the harm‟ (raf’ al-haraj), and the practice of Medina residents (amal ahl al-
Madinah), or such narrations have superficially conflicted with other principles,
which are strong.

Among such singular-chain narrations, in which many scholars misunderstood

Imam Malik‟s position is the narration of Ibn Omar on khiyar al-majlis, in which
many scholars understood that Malik denied the validity of such singular-chain
narration, because such narration conflicted with logical analogy (qiyas), which is
not true. This is because Imam Malik‟s rejection of such narration by saying that,
“This narration has no authentication limits, neither valid application or usage”, is
not because the narration has conflicted with logical analogy (qiyas), but because
Ibn Omar‟s narration on khiyaar al-majlis conflicts with two other Shari’ah
(jurisprudential) principles:
1. First, according to the Shari’ah, all contracts (business or marriage) must
be free of confusion and must be stated with clarity and beyond
reasonable doubt. As such, no judgement is binding, unless it is stated
with clear words. Thus, this narration makes marriage contract binding
without clear consensus of the concerned parties. Therefore, because of
this, Imam Malik rejected this singular-chain narration5; and
2. Second, Imam Malik‟s statement, “There is no valid application or usage
of this narration” indicates contrary to khiyar al-majlis “option of the
meeting”, in which the singular-chain narration contained, where this
particular singular-chain narration did not only conflict with logical analogy
(qiyas), but it also conflicts with the popular practices of the medinites
(people of Madinah) and the Shari’ah (jurisprudential) principles of gharar
(risk handling).6

5
See al-Mawaqif, 3/13
6
See al-Muntaqa, 1/55, and Umdat al-Ahkam, 4/13.
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Therefore, the right understanding of the Maliki School‟s view on the relationship
between singular-chain narration and logical analogy (qiyas) is not a preference
of logical analogy (qiyas) over singular-chain narration, neither to prefer logical
analogy (qiyas) over singular-chain narration. Rather is to preponderate either
singular-chain narration or logical analogy (qiyas), based on external and
supporting evidences from the other Shari’ah (jurisprudential) principles. This is
due to the fact that Shari’ah principles are applied collectively.

However, in the situation where there is conflict among them, the weigh and
balancing process (tarjih) is the way forward, and the determining factor is the
strength (quwah) and the clarity (wudhuh) of the evidence, not the source
(masdar) of the evidence. The fact that the Maliki School prefer singular-chain
narration over logical analogy (qiyas) if there is a conflict between the two and no
other evidence supports logical analogy (qiyas) over singular-chain narration, is
proven by the Maliki School‟s acceptance of diyat al-mar’ah (compensation of the
murdered women) to be half of man‟s compensation.

Imam Malik narrated7 from Said b. Musayyib that a murdered women‟s

compensation is up to a third of a man, and if she is mature, then the
compensation goes up to half of a man‟s compensation. About the narration of
Nisa‟i from Amar b. Shu‟ab who said that: the Prophet s.a.w, “Compensation of
murdered women is similar to that of man”.8 The Malikis did not decide about the
murdered women‟s compensation based on logical analogy (qiyas), which drives
that the significance of the tragedy requires significant compensation not the
otherwise, similar to the compensation of other damages. However, the reason
why Maliki School rejected this analogy and preferred the singular-chain
narration over this analogy is because this particular singular-chain narration was

7
See al-Faqih and al-Muafaqih, p136, and al-Muntaqa, 7/78
8
Sunan al-Nisa’i, 8/39
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supported by the popular practices of the Madina society. Therefore, it becomes

stronger than the said analogy.9

Another evidence of Maliki School‟s preference of singular-chain narrations over

analogy (qiyas) is their position about the Prophetic narration which permits bay’
al-ariyah (the sell of premature fruits), where the seller gives a nakhala (dates
tree) etc. to the purchaser then dismays to reclaim it from purchaser, it is
permitted to buy it. Though it is unacceptable through logical syllogism, because
it is a sale of food before receiving it as well as the exact amount of identical
items‟ exchange is unknown which could endanger riba. However, Imam Malik
accepted the singular-chain narration of bay’a al-ariyah, which was reported on
the authority of Zayd bin Thabit, and rejected the qiyas which indicated
otherwise, with the mind that bay’a al-ariyah is a type of charity and donation and
not overruled by ignorance, and bay’a al-ariyah in this matter is based on
goodwill.10

Ninth principal: Practicing custom

According to the Maliki School of Law, customary practice (urf) specifies the
generic and limits the common terms of the Shari’ah. Al-Qarafi stated that, “The
general statement of scholars are specified and limited by customs.”11 In
principle, contractual terms, as well as faith, should be understood based on the
people‟s custom, if the concerned people have a custom, for the Qur‟an states:
““Hold to (or accept) forgiveness; command what is right; But turn away from the
ignorant.”.12 Hence, the right customs are accepted, unless it violates the
contract.

According to the Maliki School of Law, ignorance in business contracts is

elevated (or made known) by custom. Thus, the deferred sale to future occasions

9
See al-Muntaqa, 7/78, and Commentary notes of Abd al-Baqi al-Zarqani on al-Muwata’, 5/142.
10
See al-Muntaqa, 7/225
11
Sharh, Tanqih al-Fusul, p.194
12
Al-Araf, verse 199.
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are accepted, and deferment of business contracts among business communities

to exchange goods are accepted, if the custom allows so, because by custom,
people will know the time and duration of the deferred contracts.

Through people‟s routine practices of business exchanging and compensation in

renting and selling, the issue of ignorance (jahalah) of hidden details of contracts
is elevated (rufia’), even if it was not described before the practised custom
replaces the descriptive details of the contract. Thus, any disagreement among
the contractual parties on the details of the contracts will be referred to the
custom that is practised in that particular region. For instance, if someone rents
out a horse or donkey and so on to another person, and the two contractual
parties agree on the rental to be the daily forage of the horse from renting parts‟
garden, such contracts are accepted, though the details of how much the horse
will eat from the garden is not specified by the two parties.13

As stated in al-mudawanah, “If someone leases a horse or donkey, etc. to

another person, and the two contractual parties agree on the rental to be the
daily forage of the horse or the camel, then according to Malik, such a contract is
permitted.14 Similarly, it is permitted to sell half of one‟s animal to someone, with
the condition that the buyer should feed it for a year, as compensation for the
second half. According to Ibn Rushd, this type of business is permitted because
the seller sold half of the animal on a specific amount, which is the forage which
would be specified by the custom.”15 Ibn Rushd adds that, “Imam Malik permitted
this type of contract because forage amount, which the rented animal can
consume is known through the daily life practices of the people (custom), and
when Yahya was asked, “Why did Malik permitted such a business contract?”,
Yahya responded, “Because the amount of forage eaten by the rented animal
from renting party‟s garden is known by custom.”16 For this reason, the Maliki

13
Al-Taj wa al-Iklil, 5/436, al-Karshi 7/34.
14
Al-Mudawanah, 4/470
15
Al-Bayan wa al-Tahsil, 7/272
16
Al-Bayan wa al-Tahsil, 7/312
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School do not consider the forage of the rented animal up to a year as a hidden
compensation, though animals are different in daily consumption and forage.

A good example of this in our time is buffets at hotels, which require a fixed price
for all customers, even though each person‟s appetite is different. Thus, based
on logical analogy (qiyas), buying a ticket from the counter of hotel to eat from its
buffet restaurant of different foods is not unknown compensation; rather, it is
known through customary practices. Nevertheless, one thing must be clear about
the buffets that are the type of foods served in the buffet restaurants must be
known. But if by custom the types of foods served is known, then that could be
the alternative way of description, which can remove the jahalah from the
contract. However, if there is no accepted custom among the client, then the
owner of the restaurants must display the list of food available in the restaurant
before selling the tickets to the customers.

The tenth principal of risk according to the Maliki School of Law

Qarafi classified unknown and risk contracts into three categories:
1. Contracts that contains huge risk, which is based on risk and adventure.
These types of contracts are prevented and outlawed consensually
(ijma’an), because it leads to exploitation and injustice, such as the sale of
the unborn baby of pregnant animals, and the deferment of sale to an
unspecified time and place;
2. Contracts which contain minimal and negligible risk, which is according to
Dasuqi, the manageable risk that people take it lightly. Such contracts with
this type of risk is permissible, such as selling fruits without knowing its
internal parts, or paying fixed fees to use the public toilets, while people
are different in terms of their water consumption, etc.,17 or leasing a house
on a monthly basis with slightly different prices; and

17
See al-Sharh al-Kabiir ma’a Hashiyat al-Dasuqi, 3/60, al-Majmu’a Sharh al-Muhazab 9/311, and Sharh
al-Kharshi Ala Kalil, 5/75.
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3. Medium risk - Scholars have different opinions on the measurement of this

type of risk, and whether this type of risk would be treated as a prohibited
risk or an allowed risk. Some scholars prohibited contracts with medium
risks because of its impact of contract, while others allowed business
contracts with manageable medium risk, and according to al-Qarafi, that is
why scholars have various opinions about contracts with risk and
concealed elements.18

There is another type of risk that cannot be classified as a minimal or negligible

risk, which is still permissible. This is because, first, this type of risk is
unavoidable (adam al-ihtiraz minhu), and second, it is unintended in the contract,
such as to buy a pregnant animal without being aware of the number of babies of
the pregnancy, or to buy un-milked female cattle,19 or to employ someone on the
basis of daily meals, or to pay fixed fees for public toilets, etc.

Eleventh principal of conditions according to the Maliki School of Law

The types of conditions (shurut) associated with the contract; the scholars of the
Maliki School of Law are flexible to permit prior conditions of the contract;
however, they are strict about the conditions contained in the contract, as follows:
1. Conditions upon which the contract is nullified, as far as the conditioner is
sticking to it. Nonetheless, if the conditioner discards such conditions, then
the contract become legitimate. This type of condition prevents the right
beneficiary person to use and benefit from items sold to him or her, such
as to sell a commodity to someone with condition that the buyer should
not sell it, or should use it, or the buyer should not donate it or give freely
to someone, or the buyer should sell back the commodity only to the
seller, or the buyer should buy the commodity together with something
else which the buyer does not want to buy. These types of conditions are
illegitimate, because it contains the element of prevention that prevents

18
Al-Furuq, 3/266
19
Al-Majmu’ Sharh al-Muhazab, 9/311.
17

the buyer to utilize the commodity which violates the basic objectives of
business contracts. According to some narrations, “Abdullahi Ibn Mas‟ud
(r.a.a) bought a female servant, then the seller informed Abdullahi b.
Mas‟ud (r.a.a) that if he (Ibn Mas‟ud) want to sell her, he should sell her
back to the seller with the same price, however, Omar b. Khatab (r.a.a)
said: “do not buy with such preconditions”,20 and this indicates that such
preconditions nullifies business contracts;
2. Conditions (shurut) upon which business contracts are nullified in any
way, regardless of whether or not the seller or the buyer produces such
conditions. These conditions are those which violate the legitimacy of the
business contract, such as business activities with riba (interest), risk
elements, such as concealment of the price or the commodity, or preserve
the choice by either party to nullify the contract at any time, without a
specific duration, etc. The narration of the asif clearly shows the invalidity
of this type of contracts with this condition,21 where in asif narration the
Prophet s.a.w. nullified the contract between the pastoralist (‘arabi) and
his contractor based on the Islamic Shari’ah. Among this type of nullified
business contracts is the sale where the buyer demands additional money
from the seller (other than the agreed price), in case the price of the
commodity goes down in the future. Ibn Rushd and others clearly stated
that such preconditions nullify the business contract.22 Any business
contract which is based on such conditions is null and illegitimate. The
word nullification here means that the buyer keeps his or her money, while
the seller keeps his or her commodity, as if no contract was concluded.
However, in the case where the commodity of such business contracts
have been utilized, the buyer must pay back the same price of the
commodity at the day of the contract to the seller.23;

20
Al-Sunan al-Kubra, 5/336, See al-Bayan wa al-Tahsil 6/264, and Tahrir al-Kalam fi Mas’il al-Iltizam,
p.358
21
Reported by al-Bukhari, 6/252
22
Al-Bayan wa al-Tahsil, 8/44 & 15/339/ and Tahrir al-Kalam, p.251
23
Al-Bayan wa al-Tahsil, 15/339
18

3. Conditions (shurut) through which the business is legitimate, but the

condition itself, not the contract, is null. These types of conditions are
those conditions which interfere and affect the rights of either contractual
parties, but neither prevents the beneficiary rights of either party, nor does
it affects the price.24 Among the example of this is if the seller sells a
commodity to someone and tells him or her to give the money at a specific
time, the business contract is null. In this situation, the contract is valid but
the condition (shart) is null,25 and the payment would be due on the time
agreed upon between them,26 based on the narration of A‟ishah (r.a.a) on
the occasion of the freedom of Barirah,27 where the Prophet s.a.w
validated the contract and nullified the condition shart, saying that: “Why
some people among you state conditions (of their own) which is not based
on the Quran and the Sunnah, any condition (whatsoever might be)
outside of the Quran and Sunnah is invalid and null…”28; and
4. Conditions (shurut) which are beneficial for either contractual party without
undermining the validity of the contract. These kinds of conditions are
permitted and it should be fulfilled, as far as it does not contain any risk
(gharar) and does not affect price or the commodity, such as to use the
sold items (such as car or house) up to certain specified time before
delivering it to the buyer. Another type of the permissible conditions are
the conditions which the contract contains, such as to require money or
payment on the spot, or to require the postponement of the delivery at a
specific time and place, or to buy furniture and other house equipments,

24
Certain detailed examples of this story see: al-Sharh al-Kabir, 3/175
25
That is the opinion of Malik based on the Mudawanah, however, Malik holds two other opinions, first is
that both the contract and the condition are valid as Zarqani states, where the seller says I sell to you this
with the condition that you should pay the money first. Second opinion of Malik is that the business is null.
See Hashiyah al-Dasuqi, 3/175, Mawahib al-Jalil, 4/416, and Sharh al-Zarqani Ala al-Khalil 5/5
26
Details: it is permissible according to Shafi’i, Hanbali and Hanafi school of thought, to keep the
commodity until receiving the complete money or the price agreed upon between the two parts, because
this condition does not nullify the contract. And according to mainstream of the jurists except the Hanafi
School, it is permissible to postpone to handover the sold item for certain specified period, and the
narration of Jabir indicates. See Kashaf al-Qina’a, 3/191, Sharh al-Mahali Ala al-Minhaj, 2/180, Bada’i al-
Sana’i 5/171, and Sharh al-Zarqani Ala Khalil, 5/5
27
Al-Bukhari with Fath al-Bari, 6/255
28
Ibid, 6/255
19

with the condition that the seller should install them or deliver them to the
buyer‟s house.

The permissibility of such conditions is based on the narration of Jabir (r.a.a) who
sold a camel to the Prophet s.a.w. while they were on travel to Madinah. The
Prophet s.a.w. asked Jabir to sell his camel to him (the Prophet s.a.w.) and Jabir
agreed, with the condition that Jabir will use the sold camel until he completes his
journey to Madinah. Then, while accepting that condition, the Prophet s.a.w. pays
to him the price of the camel. Upon arrival to Madinah, Jabir brought the sold
camel to the Prophet s.a.w.29

In this detailed account of the Maliki School of Law about the associated
conditions to the business and its classifications are based on broad conception,
which employs the narrations (ahadith) on the conditions (shurut) in a way that
these narrations do not contradict. Ibn Rushd stated in the introductions that:30 “It
was narrated that Abdul Warith b. Sa‟iid said, “I come to Makkah and met Aba
Hanifah, Abi Layla and Ibn Shubrumah (r.a.a), then asked Aba Hanifah, “What is
your opinion about someone who sold (ba’a, or business contract) something
and make conditions (shurut)”, then Aba Hanifah replied, “Both the contract (aqd)
and the condition (shart) are null”. Then, I come to Abi Layla and asked him the
same question and he replied: “The contract is valid but the condition is invalid”,
then I come to Abi Shubrumah and asked him the same question, and replied:
“Both the contract and the condition are valid”. Then, said Abdul Warith, after
hearing the response of these three scholars, I said, “Subhana Allah, i.e., glory to
Allah”, how come three of Iraqi scholars are giving me three different answers
about one issue? Then, Abdul Warith said, “I went back to Aba Hanifah and told
him the answers of other two scholars on the subject, then Aba Hanifah replied,
“I am not certain about their answers but my understanding is based on the
Prophetic narration which was reported by Amar b. Shu‟ayb from his grandfather

29
Reported by Muslim, 3/65
30
2/68, and Hashiyat al-Dasuqi, 3/65
20

through his father that the Prophet (s.a.w) prohibited, “sell and condition”.31
Then, I come back to Abi Layla and told him the answers of other two scholars
on the subject, and he replied: I am not certain about their answers but my
understanding is based on the Prophetic narration which was reported by A‟ishah
(r.a.a) who said: “the Prophet (s.a.w) asked to buy Barirah (r.a.a) and free her
even if her master make preconditions, this is because the loyalty of freed slave
(wala) belong to the person who frees the salve”, therefore said Abi Layla the
contract (aqd) is legitimate and condition (shart) invalid. Then, Abdul Warith
said: I come back to Abi Shubrumah and told him the answers of other two
scholars on the subject, and he replied: I am not certain about their answers but
my understanding is based on the Prophetic narration which was reported by
Jabir (r.a.a) who have had business contract with Prophet s.a.w. but with
condition, where both the contract and the condition were valid.

Twelfth principal: To considerably accommodate (mura’at) the differences

Though mura’at literally denotes consideration, reflection and observance of the
difference, it is employed to indicate the scholar‟s or mujtahidi’s position, who
takes into consideration of evidences of other opinions and thoughts, which are
opposite to his own opinion. Or it is about the mujtahid’s position, based on the
available evidence about a certain issue and event, but takes into consideration
of evidences of opposite opinion, because of its strength.32 The consideration of
opposite evidence is based on the Prophetic narration, “The illegitimate baby is
for the bed (belongs to the family), while the fair punishment of the bastard (zani)
is stone”.33 The Prophet‟s decision to associate the child to the bed is based on
the Islamic Shari’ah’s view that in the case where a married woman engages in
adultery with another man other than her husband, the illegitimate child of such
engagement should be associated to the owner of the bed (husband), not to the
31
Said in Nayl al-Awtar, 5/202, this narration was reported by Ibn Hazm in the Mahali, and Khitabi in the
Ma’lim, and Tabari, in the al-Awsat, and al-Hakim fi Ulum al-Hadith, but Imam Nawawi and al-Fawaris
categorized this narration as a “strange”. The literal narration of imam Termizi (hadith no 3504) and Abi
Daudi’s (hadith no: 1234) report was is somewhat different from he above mentioned statement.
32
Al-Bahjah fi Sharh al-Tuhfah, 1/10, and Sharh Hudud Ibn Arfah 1/260.
33
For further details of this narration and what happen between Sa’ad bin Abi Waqas and Abdullah b.
Zam’ah on the illegitimate child of Zam’ah’s female servant, see Al-Bukhari, hadith no: 1912
21

bastard (zani), based on the believe that opposite evidences must be taken into
consideration.

However, a number of scholars rejected the issue of considering the opposite

evidences and insisted that the scholar should follow the evidence, regardless of
whether other evidences indicate the opposite or otherwise. 34 Among the good
examples of considering the opposite evidence is the confirmation of inheritance
and ancestry for the unprotected marriage (nikah al-shighar), which is invalid
according to Maliki School of Thought, to consider the position of Hanafi School
who validates it.35

Similarly, goes to the Jewelers owned through invalid business contract, then lost
through consumption or transferred to another ownership, the transaction will go
through, because of the difficulty which arises from any attempt to retrieve it back
more than the original prohibition.36

Written by: Al-Sadiq b. Abdul Rahman al-Gharyani (21 Sha’ban/ 1429 H, 23/ 08/
2008)

34
See al-Bahjah fi Sharh al-Tuhfah, 1/10, Sharh Hudud Ibn Arafah, 1/263, and al-Is’af Bi al-Talab, p.91.
35
See al-Bahjah fi Sharh al-Tuhfah, 1/10.
36
See al-Bahjah fi Sharh al-Tuhfah, 1/10, and al-Muwafaqat Li al-Shatibi, 4/204