Are Void Clauses Valid in the Shafi’i School?

Answered by Shaykh Muhammad Carr

Question

I’ve heard that in the Shafi‘i School, including void clauses in contracts is considered sinful. If a software license contains a void condition (e.g., prohibiting resale or sharing), would it be sinful to violate that condition? Would the ruling differ depending on whether a person knew the clause? And would it be sinful to continue using the software after breaching such a term?

For instance, if a clause (or set of clauses) is void, but a person agrees to it, would it still be sinful to breach it? In many license agreements, companies include conditions such as prohibiting the transfer of software usage rights without permission, and sometimes even stipulate that breaching this condition would terminate the license and bar the user from further use.

In such cases, would it be sinful to knowingly or unknowingly violate the condition and continue using the software afterward?

Answer

In the Name of Allah, the Most Merciful and Compassionate.

I pray you are in good faith and health. May Allah reward you for ensuring your transactions are compliant with Islamic Law.

The Prophet (Allah bless him and give him peace) said, “Muslims are upon their conditions.” [Abu Dawud]

Including void clauses in a sale and lease contract invalidates the contract according to the relied-upon view in the Shafi‘i School. The contract in question is neither a sale nor a lease agreement, thus not limited to its restrictions. In licensing contracts, users receive usage rights under specified conditions, not ownership of the underlying code. Violating usage conditions is impermissible. Allah says, “O you who believe, fulfil your covenants” [Quran, 5:1]

Usufruct, Usage, and Permission to Use 

Granting ownership of usage rights in exchange for compensation constitutes ijara. Allowing benefit without transferring ownership of use is called ibaha. When the subject matter concerns marital intimacy, the contract establishing this right is nikah. Other subject matters fall under ibaha.

The proper framework for software transactions is a contract that permits the user to benefit from the software in exchange for a fee. Since the wording ijara or its cognates is not employed, such agreements are not governed by the rules of ijara.

Shibramallisi argues that the definition of an ijara contract must include “that which is enacted employing the word ijara or its like” to exclude ji‘ala.

Nikah is excluded from the definition of ijara from the outset, as it does not involve granting usufruct ownership. Instead, it is a contract through which the husband acquires the right to marital intimacy with his wife.

Similarly, software licensing is neither a sale in the strict sense nor a lease arrangement, but rather a permission to use, the scope of which is determined by the owner.

The Essence of a Software Sale: 

Nature of the Transaction

• Unlike physical goods, software is usually licensed rather than sold outright.
• The user receives usage rights under specified conditions, not ownership of the underlying code.

Offer and Acceptance

• The software provider offers access or usage rights under certain terms (e.g., license agreement).
• The user accepts and agrees to those terms, often by purchase, installation, or click-wrap agreement.

Consideration (Price/Payment)

• The buyer provides payment (money or equivalent) in exchange for the right to use the software.

Terms and Conditions

• Define the scope of use (e.g., personal, commercial, limited devices).
• May include restrictions (e.g., no resale, no modification, no reverse-engineering).
• Often include clauses on updates, liability, and termination.

Transfer of Rights

• Usually, the buyer acquires a license (a limited, revocable right) rather than full ownership.
• Ownership of intellectual property remains with the developer or publisher.

Enforcement and Remedies

• Breach of terms can result in termination of the license, damages, or legal action.

The Sale of Software as an Ijara Contract

Should we construe the sale of software as an ijara contract, it would still not allow for violating the owner’s restrictions.

Albeit for different reasons, the relied-upon view and a third view (which I espouse) within our School do not allow the violation of license restrictions.

According to the relied-upon view, including void clauses invalidates the contract. A vitiated contract means no consequences to the contract, as it is null and void from the outset. This means that you do not have access to the usufruct, let alone granting access to another. Ibn Hajar says, “If the lessor stipulates that only the lessee has access to the usufruct, the contract is null and void.” [Ibn Hajar, Tuhfat al-Muhtaj].

The third view holds that the lease and the condition are valid because the lessee did not acquire the benefit except from the lessor, and so he does not own more than what the lessor granted him. [‘Imrani, al-Bayan fi Madhhab al-Imam al-Shafi‘i]

“And if he rents it to him on the condition that he himself will live in it, and that neither one like him nor anyone beneath him may reside in it; or if he rents him a beast to ride upon on a journey, stipulating that neither one like him nor anyone beneath him ride it—then there are three views regarding this:

First: The lease is invalid, because the condition contradicts its essence.

Second: The lease is valid, but the condition is void, since it causes no harm to the lessor, and thus the lease remains upon its proper terms.

Third: The lease is valid, and the condition is valid as well, because the lessee only acquired the benefit from the lessor, and so he does not own more than what the lessor granted him.” [See Ibid]

I pray this is of benefit and that Allah guides us all.
[Shaykh] Muhammad Carr
Checked and Approved by Shaykh Faraz Rabbani

Shaykh Muhammad Carr has dedicated his life to studying and transmitting our beautiful deen. His studies have taken him around the globe, where he has benefitted from many luminaries. Under the guidance of his teachers – Shaykh Taha Karan, Shaykh Yaseen Abbas, Shaykh Muadh Ali, and many others – Shaykh Muhammad has grown to appreciate the beauty and benefits of diverse scholarship. He completed his memorization of the Qur’an at Dar al-Ulum Zakariyyah in September 1997 and received an Alimiyya Degree in 2006 from DUAI (Darul Ulum al-Arabiyyah al-Islamiyyah). He is also affiliated with Masjid Auwal in Bo Kaap, Cape Town (the oldest mosque in South Africa), where he serves as a co-imam, and Dar Al-Safa, where he has taught since 2018. As a teacher, he imparts the wisdom of our heritage and tradition by opening the door to students. As an imam, he has the unique opportunity to serve his community in daily life.

In addition to his roles as a teacher and imam, Shaykh Muhammad Carr has contributed significantly to the administrative and advisory aspects of Islamic institutions. Since 2023, he has served as the Administrative Director at The Imam Kurani Institute, contributing to the institution’s growth and development. He continues to pursue traditional Islamic Sciences, possessing a keen interest in Islamic Contract Law and Finance. Shaykh Muhammad has been a Shari‘a Board Member for Islamic Asset Management & Insurance Companies since 2001, aligning financial practices with Islamic principles.