Shart (a condition in law: its kinds, and its effect on contracts)

In language shart (with a quiescent r) is the binding of a thing and its obligation, and with an open r it means a sign, as in the signs (ashrat) of the Hour. ¹ Technically it is what the absence of which entails absence, while its presence entails neither presence nor absence in itself; al-Baydawi defines it as what the effect of a causer depends on without being its existence, and gives ihsan (marriage) in fornication as an example. ¹

A pillar (rukn) is what a thing cannot exist without, and it is inside the reality; a condition is outside it. A cause (sabab) is what entails existence when present and absence when absent; the midday decline is the cause of the noon prayer and purity its condition. An impediment (mani') is what entails absence when present. ^{1 11}

A condition that works like a cause is one no cause stands against, like digging a well, where liability falls on the digger because the stone's fall is the cause and the ground a barrier removed by digging. ² A condition with the force of a cause is one after which a free agent acts, not attributable to the condition, like releasing a game animal from a snare before it bolts; the Hanafis hold there is no liability. ² A condition that is a name and not a ruling is the first of two conditions on which a ruling depends. ² A condition that is a plain sign, like ihsan in fornication, does not prevent the cause from taking effect; so witnesses to the marriage are not liable when they retract. ³

A conditional made condition (ta'liq) requires that the thing conditioned on be non-existent and uncertain, future, that no unrelated element intervene, that the condition not be meant as a punishment, that the link between condition and consequence exist, and that the speaker be able to effect the matter outright; the last is disputed. ³ A restricted condition (taqyid) adds a requirement beyond the act itself and is in the future; it is known by a particle, such as if, when, whoever, whatever or whenever, or by its meaning, as in the woman I marry is divorced. ^{4 12} Whether making a ruling conditional prevents the cause or only the ruling is disputed, and is treated in the usuli appendix. A condition is a connected particulariser. Whether if (in) implies that the ruling lapses when the condition fails is disputed. ¹²

A condition attached to a transaction may be valid, defective or void. A valid one, such as stipulating that a cow is a milker, leaves the contract valid; stipulating that a camel will give birth in two months makes a sale defective. ⁵ The Hanafis distinguish defective from void and divide restricted conditions into valid, defective and void; the others treat them as valid and void, or valid and defective. ^{5 6}

For the Hanafis a valid condition is one that concerns an attribute of the object existing at the contract, what the contract requires, what suits it, what a text permits, or what custom has settled; for the Malikis, what the contract requires or does not require and does not contradict; for the Shafi'is, what secures a lawful interest of a contracting party. ⁶ The kinds are: an attribute present in the object, such as delivery; what the contract requires, such as delivery; what suits the contract, such as a pledge or surety; what a text permits; what custom has settled; and, for the Hanbalis, a seller stipulating a known lawful benefit, such as living in the house for a month. ^{6 7}

Conditions are of two kinds: those that void the contract, and those that leave it valid. For the Hanafis the first kind includes a stipulation producing undue uncertainty, a forbidden matter, or one that the contract does not require, does not suit, and custom does not sanction, and that benefits one party. ⁷ Examples of the first kind: that a she-camel is pregnant, which is uncertain; that the house is not sold, which contradicts the contract; that the sale is made until the offspring's offspring is born, which is unknown; a sale with an additional contract such as a loan, or a sale on condition that a price is paid in another kind; and, for the Hanafis and Malikis, that the seller keep the house for a month. ^{7 8} The second kind leaves the contract valid whether or not the stipulator drops the condition: a condition that is not required and is not sanctioned or customary, and benefits none of the parties. The Malikis also list the waiver of defects, which is void and does not invalidate the sale. ^{9 10} See the entries on the appendix on conditions, on the jurist's mirror and on association. ¹⁰