Summary of Feqh - Section 2: Types of format:

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Section 2: Types of format:

Firstly: Verbal transactions (i.e., offer and acceptance)
1. Defining “offer” (ijab) and “acceptance” (qabul)
An “offer” is any formula or wording which comes from the seller to indicate their consent to the transaction. For example, “I sell you such-and-such”, “I give you possession of such-and-such”, and so on. [218] See Rawdat al-Talibin by Nawawi (3/336), Mawahib al-Jalil by Hattab (6/13), and Kashshaf al-Qina` by Bahuti (3/146).

An “acceptance” is any formula or wording which comes from the buyer to indicate their consent to the transaction. For example, “I have purchased”, “”, “I accept”, “I am satisfied”, and so on. [219] See Rawdat al-Talibin by Nawawi (3/336), Mawahib al-Jalil by Hattab (6/13), and Kashshaf al-Qina` by Bahuti (3/146).

2. A transaction is concluded by anything the people consider to be a “trade”
A transaction is concluded by anything the people generally consider a “trade”. [220] Regardless of whether the wording uses the past tense, present tense, command form, or noun sentence. This was the position of the Malikis, [221] Mukhtasar Khalil, p. 143; Mawahib al-Jalil by Hattab (6/13); and Minah al-Jalil by `Ulaysh (4/434). the preponderant position of the Hanbalis, [222] Kashshaf al-Qina` by Bahuti (3/146). See also, Al-Mughni by Ibn Qudamah (3/480, 481) and Majmu` al-Fatawa by Ibn Taymiyyah (29/7). the opinion of some Shafi`is which was preferred by Nawawi, [223] Rawdat al-Talibin by Nawawi (3/339) and Mughni al-Muhtaj by Shirbini (2/3). and the preferred opinion of Ibn Taymiyyah, [224] Ibn Taymiyyah said: “Anything acknowledged by the people, whether in the form of a sale or a gift, occurring successively or with a time gap, and by statement or action, constitutes a valid sales or gift contract.” Al-Fatawa al-Kubra (5/387). He also said: “In general contracts, it is sufficient to rely on what people commonly understand. If people generally consider something as a sale, then it is a sale. If they regard it as a lease, then it is a lease. If they perceive it as a gift, then it is a gift. Similarly, if they recognize it as a charitable endowment, then it is a charitable endowment. In such cases, the specific wording used is not critical.” Al-Fatawa al-Kubra (20/230). See also Al-Insaf by Mardawi (4/190). Ibn al-Qayyim, [225] Ibn al-Qayyim said: “You have differentiated between two contracts that Allah has considered equivalent in every aspect. The contracting parties explicitly express their mutual agreement, and Allah, may He be Glorified, is aware of their consent, as well as those who are present. However, you claim that a contract is not valid until the phrase “I sell and buy” is explicitly used, and that it is not sufficient for one of them to say, “I am totally satisfied with this”, for this communicates the consent that Allah, may He be Glorified, has made a condition for the validity of a transaction. The same goes for marriage. These are not acts of worship for which specific phrases are mandated, as is the case with the call to prayer, the recitation of al-Fatihah in prayer, the testimony of faith, and the takbir of ihram, and so on. Rather, contracts and transactions encompass dealings between the righteous and the unrighteous and Muslims and non-Muslims, and the Legislator has not prescribed specific wordings that must be used. Contracts and transactions can be based on customary language and the understanding of the parties involved, for neither Allah nor His Messenger legislated particular formulas that we must utilise in concluding contracts.” I`lam al-Muqi`in (1/343). and Ibn `Uthaymin. [226] Ibn `Uthaymin said: “All contracts are concluded by what is indicated by custom. This is the most accurate view, and it was the preferred opinion of Shaykh al-Islam Ibn Taymiyyah, r. Therefore, the correct view is that all contracts do not have a specific form; rather, they are concluded by what indicates their conclusion, and it is not possible for an individual to distinguish between a sale and other transactions. If they say, for example, that marriage is mentioned by Allah with the term ‘nikah’, we respond by saying that Allah also mentioned ‘trade (bay`)’ by name. Do you assert that it must be said, ‘I sell this’? They reply that it is not a stipulation. Therefore, a contract is established by any wording that customarily indicates an offer, with acceptance thereafter.” Al-Sharh al-Mumti` (8/102).

This was for the following reasons. Firstly, because the Prophet, the Companions, and the Followers used to engage in trade, and they were not bound by a particular formula on either side (i.e., when buying or selling). [227] Majmu` al-Fatawa by Ibn Taymiyyah (29/18).

Secondly: Because there is no set wording legislated in the Shariah, therefore one should revert to local custom, as with similar situations where expressions are used. [228] Rawdat al-Talibin by Nawawi (3/339) and I`lam al-Muqi`in (1/343).

Thirdly: Because there is no fixed limit defining what is or is not a “transaction”, neither in the Shariah nor linguistically. Rather, it varies according to the differences in people’s terminology. [229] Al-Qawa`id al-Nuraniyyah by Ibn Taymiyyah, p. 155. See also Majmu` al-Fatawa by Ibn Taymiyyah (29/8).

Fourthly: Transactions are not acts of worship in which people must adhere to that which has been documented and transmitted. Rather, they are general, day-to-day dealings amongst the people. Therefore, whatever people consider to be a “transaction” is a transaction. [230] Al-Sharh al-Mumti` by Ibn `Uthaymin (8/102).

Secondly: Physical transactions
1. The giving transaction
Defining “giving”
Linguistically: It is the mufa`alah form of the verb “`ata’”, meaning “to give”. It is used in relation to delivering or donating, but the scholars of jurisprudence specifically used it to refer to handing over. [231] Mukhtar al-Sihah by Razi, p. 212, and Al-Mutli` `ala Alfaz al-Muqni` by al-Ba`li, p. 271.
Technically: It is for the buyer to take the purchased item and pay its price, or for the seller to hand over the purchased item and then for the other person to pay its price, without any dialogue or gesture. [232] Al-Sharh al-Kabir by al-Dardir (3/3). See also Bada’i` al-Sana’i` by Kasani (5/134) and Sharh Muntaha al-Iradat by Bahuti (2/6).

Ruling of the giving transactions:
Giving transactions without any dialogue from either party are permitted, and this was the position of the majority: the Hanifis, [233] Tabyin al-Haqa’iq by Zayla`i (4/4) and Hashiyat Ibn `Abidin (4/514). Malikis, [234] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/3) and Minah al-Jalil by `Ulaysh (4/434). a valid opinion according to the Hanbalis, [235] Al-Furu` by Ibn Muflih (6/122, 123) and Al-Insaf by Mardawi (4/190). and some of the Shafi`is. [236] Al-Majmu` by Nawawi (9/162) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (5/39).

This was for the following reasons. Firstly, because the validity of a transactions depends on an expression of consent, not on the particular wording used. In this instance, both parties express their consent, so the transaction must be permissible. [237] Tabyin al-Haqa’iq by Zayla`i (4/4).

Secondly: Because trade existed before the Shariah came into effect. The Shariah attached rulings to transactions but did not specify a wording they must take. Therefore, this should revert to custom, as is the case with collecting and safeguarding. [238] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/343).

Thirdly: The Muslims continued to do this in their markets and places of trade, and there is no transmission regarding the Prophet or any one of his Companions habitually using offer and acceptance (i.e., the verbal form of trade). If they had done so, there would have been a widespread narration to that effect and the Prophet would have clarified it because of its general necessity, and his rulings are never hidden. [239] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/343).

2. Written transaction [240] A trade is also valid through writing on chat programs on the internet or online stores, via fax and telex, and so on. Further discussion on this topic will be covered in the section on transactions using modern means of communication.
The written transaction is completely valid, regardless of whether the two parties are present or absent. [241] The Hanafis and Hanbalis said the written transaction of an absent party is valid. See Tabyin al-Haqa’iq by Zayla`i (4/4) and Kashshaf al-Qina` by Bahuti (3/148). This was the position of the Malikis [242] Al-Sharh al-Kabir by Dardir (3/3) and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/3). and relied upon position of the Shafi`is, [243] According to them, it is concluded through writing with an intention, because it is an indirect expression. Al-Majmu` by Nawawi (9/168), Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/222), and Mughni al-Muhtaj by Shirbini (2/5). and the chosen view of Shawkani, [244] Shawkani said: “The validity of the sale through writing is affirmed because it is among the expressions of consent and satisfaction.” Al-Sayl al-Jarrar, p. 478. He also said: “Indeed, every expression of mutual consent, whether conveyed through speech, writing, or even mere indication, results in valid Islamic transactions of buying and selling, so long as the mutual agreement is known and recognised.” Al-Sayl al-Jarrar, p. 540. and it was indicated in the statements of Ibn Taymiyyah, [245] Ibn Taymiyyah said: “Everything that people consider as a sale or gift [agreement], whether through words or actions and whether performed swiftly or slowly, concludes a sale or gift [agreement].” Al-Fatawa al-Kubra (5/387). He also said: “In general contracts, it is sufficient to rely on what people commonly understand. If people generally consider something as a sale, then it is a sale. If they regard it as a lease, then it is a lease. If they perceive it as a gift, then it is a gift. Similarly, if they recognize it as a charitable endowment, then it is a charitable endowment. In such cases, the specific wording used is not critical.” Majmu` al-Fatawa by Ibn Taymiyyah (20/230). See also Al-Insaf by Mardawi (4/190). Ibn al-Qayyim, [246] Ibn al-Qayyim said: “You have differentiated between two contracts that Allah has considered equivalent in every aspect. The contracting parties explicitly express their mutual agreement, and Allah, may He be Glorified, is aware of their consent, as well as those who are present. However, you claim that a contract is not valid until the phrase “I sell and buy” is explicitly used, and that it is not sufficient for one of them to say, “I am totally satisfied with this”, for this communicates the consent that Allah, may He be Glorified, has made a condition for the validity of a transaction. The same goes for marriage. These are not acts of worship for which specific phrases are mandated, as is the case with the call to prayer, the recitation of al-Fatihah in prayer, the testimony of faith, and the takbir of ihram, and so on. Rather, contracts and transactions encompass dealings between the righteous and the unrighteous and Muslims and non-Muslims, and the Legislator has not prescribed specific wordings that must be used. Contracts and transactions can be based on customary language and the understanding of the parties involved, for neither Allah nor His Messenger legislated particular formulas that we must utilise in concluding contracts.” I`lam al-Muqi`in (1/343). He also said: “Whoever understands the intention of the speaker through evidence, it is obligatory to follow his intention. Words are not intended for themselves; rather, they are indications used to infer the speaker's intention. Once his intention becomes clear and is manifested by any means – whether through gestures, writing, signals, mental indications, or contextual clues – action is taken accordingly.” I`lam al-Muqi`in (1/258). and Ibn `Uthaymin. [247] Ibn `Uthaymin said: “All contracts are concluded by what is indicated by custom. This is the most accurate view, and it was the preferred opinion of Shaykh al-Islam Ibn Taymiyyah, r. Therefore, the correct view is that all contracts do not have a specific form; rather, they are concluded by what indicates their conclusion.” Al-Sharh al-Mumti` (8/102).

Delayed acceptance of a transaction offer by writing:
It is permitted for the acceptance of a transaction offer made in writing until the letter or message reaches the buyer, and this was stipulated by the Hanafis, [248] Al-Bahr al-Ra’iq by Ibn Nujaym (5/290) and Hashiyat Ibn `Abidin (4/512). See also Al-Ikhtiyar li Ta`lil al-Mukhtar by al-Mawsili (2/5). Shafi`is, [249] The Shafi`is stipulate that the buyer must accept immediately after becoming aware of the offer. Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/222, 224), Nihayat al-Muhtaj by Ramli (3/381), and Hashiyata Qalyubi wa `Umayrah (2/193). and Hanbalis, [250] Kashshaf al-Qina` by Bahuti (3/148) and Matalib ‘Uli al-Nuha by Rahibani (3/7). for a delayed response does not indicate that a party has decided against a transaction in their absence. [251] Kashshaf al-Qina` by Bahuti (3/148).

This is for the following reasons:

(1) Because if a speaker’s intent is known through any form of evidence, it is followed. The wording merely reflects the intent of the speaker. Therefore, if their intent is made clear and obvious, whatever the means, then it should be acted upon, regardless of whether it was through gesture, writing, indication, an intellectual reference, or a situational inference. [252] I`lam al-Muqi`in by Ibn al-Qayyim (1/258).

(2) Because transactions made in writing indicate willingness and contentment, which are the basis of the validity of transactions and all other legislated dealings. [253] Al-Sayl al-Jarrar by Shawkani, p. 478.

Thirdly: Transactions by gesture
1. The transaction of a person who is born mute
The transaction of a person who is born mute [254] This excludes people who are mute for a specific reason, such as those who are tongue-tied, which will be discussed in the following section. is concluded by gesture or writing, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [255] Tabyin al-Haqa’iq by Zayla`i (2/196) and Al-Binayah Sharh Al-Hidayah by `Ayni (5/302). Malikis, [256] Al-K?f? by Ibn `Abd al-Barr (2/731), Al-Taj wa al-Iklil by Mawwaq (2/731), and Minah al-Jalil by `Ulaysh (4/90). Shafi`is, [257] The Shafi'i school divided the indication of the mute person into explicit and implied. Rawdat al-Talibin by Nawawi (3/343), Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/227), and Mughni al-Muhtaj by Shirbini (2/7). and Hanbalis. [258] Kashshaf al-Qina` by Bahuti (3/201) and Sharh Muntaha al-Iradat by Bahuti (2/37).

This is for the following reasons:

(1) Because that indicates what is in their heart, just as speech does for a person who is able to speak. [259] Mughni al-Muhtaj by Shirbini (2/7).
(2) Because a mute person has the same needs as someone who is verbally communicative. If their gesturing was not given the same weight as the verbal expression of a person who can speak, then it would lead to hardship on their part, which the Shariah repels. [260] Al-Binayah Sharh Al-Hidayah by `Ayni (5/302).
(3) Because gesture has become customary for mute people and has taken the place of verbal expression out of necessity. [261] Al-Binayah Sharh Al-Hidayah by `Ayni (5/302).

2. A person who is mute for another reason (e.g., a person who is tongue-tied [262] Meaning: someone who is unable to speak. See Tahdhib al-Lughah by Azhari (1/161), Lisan al-`Arab by Ibn Manzur (11/459), and Al-`Inayah by Babarti (10/524).
The transaction of a person who is mute for another reason is also concluded by gesture or writing, and this was the position of the Malikis [263] The Malikis believe that a contract can be concluded through indication in all circumstances for a mute person and if the indication is understood for others. Mawahib al-Jalil by Hattab (6/14) and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/3). and Shafi`is, [264] Hashiyat al-Sharwani `ala Tuhfat al-Muhtaj (8/21), Mughni al-Muhtaj by Shirbini (3/53), and Nihayat al-Muhtaj by Ramli (6/65). the opinion of Abu Yusuf from the Hanafis, [265] Al-Bahr al-Ra’iq by Ibn Nujaym (8/521). one of the views of the Hanbalis, [266] They mention it in regards to bequests and curses. Al-Furu` by Ibn Muflih (9/206) and Al-Mubdi` by Burhan al-Din Ibn Muflih (6/6; 8/69). and the preferred opinion of Ibn al-Qayyim. [267] Ibn al-Qayyim believed that a contract could be concluded by anything that indicates an offer and acceptance. Ibn al-Qayyim said: “Whoever understands the intention of the speaker through evidence, it is obligatory to follow his intention. Words are not intended for themselves; rather, they are indications used to infer the speaker's intention. Once his intention becomes clear and is manifested by any means – whether through gestures, writing, signals, mental indications, contextual clues, or a regular habit of his that he does not break – action is taken accordingly.” I`lam al-Muqi`in (1/167).

Evidences:
Firstly: From the Sunnah
Anas narrates that a Jew smashed a maid’s head between two stones. She was asked, “Who did this to you, So-and-so, or so-and-so?”, until the Jew was named and she nodded with her head. He was brought forth and questioned until he confessed. The Prophet gave instructions, and his head was also smashed with stones. [268] Reported by Bukhari (2746) and Muslim (1672). The wording here is from Bukhari. The Prophet gave her gesture the same weight as a verbal claim, without any indication from him that this would only remain valid for a specific amount of time. This indicates that a person who is tongue-tied has the same status as someone who is born mute. [269] Mukhtasar Ikhtilaf al-`Ulama’ by al-Tahawi (5/66).

Secondly: Because comprehensible gesture is described as if it is speech. Allah Exalted says: “Your sign is that you will not be able to speak to people for three days except through ramz”, [270] Al `Imran, 41. and “ramz” refers to gesture. In this regard, there is no distinction between a person who is tongue-tied and someone who is born mute. [271] Mawahib al-Jalil by Hattab (6/14).

Thirdly: Because if a party to a transaction is unable to speak, there is no difference between a person who is born mute and someone who is tongue-tied. Articulation is obligatory for the person who is able to speak. If they are unable, then gesture takes the place of verbal expression. In the same way, there is no difference between an animal that is born wild and an animal that becomes wild in relation to slaughter. [272] Tabyin al-Haqa’iq by Zayla`i (6/218).

Transaction by comprehensible gesture of a person who is not mute
Transaction by comprehensible gesture is permitted for a person who is not mute, and this was the position of the Malikis [273] Mawahib al-Jalil by Hattab (4/229; 6/14) and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/3). and the preferred opinion of Ibn Taymiyyah [274] Ibn Taymiyyah said: “In general contracts, it is sufficient to rely on what people commonly understand. If people generally consider something as a sale, then it is a sale. If they regard it as a lease, then it is a lease. If they perceive it as a gift, then it is a gift. Similarly, if they recognize it as a charitable endowment, then it is a charitable endowment. In such cases, the specific wording used is not critical, and there are many examples of this.” Majmu` al-Fatawa (20/230). and Ibn al-Qayyim [275] Ibn al-Qayyim said: “Whoever understands the intention of the speaker through evidence, it is obligatory to follow his intention. Words are not intended for themselves; rather, they are indications used to infer the speaker's intention. Once his intention becomes clear and is manifested by any means – whether through gestures, writing, signals, mental indications, contextual clues, or a regular habit of his that he does not break – action is taken accordingly.” I`lam al-Muqi`in (1/167). . Comprehensible gesture has even more right to be permitted than merely giving, because it is described as if it is speech. Allah Exalted says, “Your sign is that you will not be able to speak to people for three days except through ramz”, [276] Al `Imran, 41. and “ramz” refers to gesture. [277] Mawahib al-Jalil by Hattab (6/14).

Fourthly: Transactions using modern means of communication
Transactions using modern means of communication [278] This refers to transactions conducted through voice and video calls over the phone, as well as sales in writing through modern means of communication on the internet, such as online stores and other platforms, as we have previously mentioned. However, every contract that requires a physical exchange in an assembly, like a salam transaction or a currency exchange, is an exception to this. are valid, and this was stipulated by the Islamic Fiqh Academy, [279] The following was stated in the decisions of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation, which were made after reviewing the research received by the Academy on the subject of conducting contracts through modern means of communication, considering the significant advancements in communication means and their use in expediting financial transactions, recalling what the jurists discussed regarding concluding contracts through speech, writing, indication, or a messenger, and what they decided concerning the fact for contracts between two present parties, there must be a unified assembly [between the two] – except for cases involving wills, bequests, and mandates – the coinciding of an offer and acceptance, the absence of any evidence to suggest that one of the parties is not amenable to the agreement, and an adherence to customary ways of expressing the offer and acceptance. The Academy decided the following: Firstly, when a contract is concluded between absentees who are not physically present in the same location and cannot see each other in person or hear each other’s speech, using writing, messages, or representatives (messengers), including telegrams, telex, fax, and computer screens, the contract is considered concluded upon the delivery of the offer to the intended recipient and their acceptance. Secondly, if a contract is concluded between two parties simultaneously, but they are located in separate and distant places, such as through telephone or wireless communication, it is considered a contract between present parties. In such cases, the original rules established by the jurists apply. Thirdly, if someone issues an offer for a specific duration of time through modern means of communication, they are obliged to maintain the offer throughout that duration and they cannot retract it. And fourthly, the aforementioned rules do not apply to marriage, where witnessing is a condition, currency exchange, where a mutual transfer of possession is stipulated, or a salam transaction, where an upfront payment is stipulated. Decisions and recommendations of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation (decision no. 52 – 3/6) regarding the ruling on conducting trades through modern means of communication. the Accounting and Auditing Organisation for Islamic Financial Institutions, [280] On the 17 Rabi` al-Awwal 1430 AH / 15 March 2009, under the legislative standard no. (38), and it included: “The contract is considered valid through the use of the Internet, regardless of the method of contracting, at the time the acceptance is issued by the other party, regardless whether the person who provided the money is aware of it or not.”. Al-Ma`ayir al-Shar`iyyah, p. 935 onwards. the Islamic Fiqh Academy in India, [281] The decision of the Islamic Fiqh Academy in India was taken in April 2001, and it included: “The offer and acceptance in a trade are valid through telephone and video conferencing. Even if the contracting parties are online simultaneously and the other party immediately shows their acceptance after the offer, the trade is concluded, and the agreement between the contracting parties is considered valid in this scenario.” Transmitted from Watha’iq al-Nawazil by Muhammad al-Jizani (2/1076). Ibn Baz, [282] Ibn Baz stated the validity of trades conducted over the phone. He was asked about that, and he responded: “When someone says [over the phone], ‘I sell you such-and-such’, and you say, ‘Yes’, and then hang up the phone, the trade is complete.” Masa’il al-Imam Ibn Baz, compiled by `Abdullah ibn Mani` al-Ruqi (2/80). and Ibn `Uthaymin. [283] Ibn `Uthaymin also stated the validity of trades conducted over the phone. He said: “If two individuals engage in a transaction over the phone, there is no option to revoke the transaction. As soon as one of them says, ‘I hereby sell you’, and the other says, ‘I hereby purchase’, the sale is binding.” Al-Sharh al-Mumti` (8/262). This is because the objective of trade is for a person to take what someone else possesses and pay a compensation in return with the consent of both parties. A customary indication is sufficient to signify such consent, either through word or deed, [284] Mawahib al-Jalil by Hattab (6/13). and this is achieved using modern means of communication.