Specifying the price and distinguishing it from the commodity if the exchange is between money and money is according to which is preceded by the word “for”, [334] Translator’s note: i.e., the price will be preceded by the word “for”. and this was the view of the Shafi`is [335] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/406, 407) and Mughni al-Muhtaj by Shirbini (2/70). and Hanbalis [336] For the Hanbalis, the price is always that which is preceded by the word “for”. Al-Insaf by Mardawi (4/341) and Kashshaf al-Qina` by Bahuti (3/247). and the preferred opinion of Ibn `Uthaymin [337] Where the price is whatever is preceded by the word “for”. Ibn `Uthaymin said: “Some scholars said: The price is what is indicated by the word ‘for’. So, if you say, ‘I sold you a garment for a dirham’, then the dirham is the price. If he says, ‘I sold you a dirham for a garment’, then the garment is the price. If I sold you a pen for a watch, then the watch is the price, and if I sold a watch for a pen, then the pen is the price. This is the preponderant position, even in people’s understanding, that the price is whatever is preceded by the word ‘for’.” Al-Sharh al-Mumti` (8/169). . This is because this “for” is known as “the ‘for’ of valuation”. As Allah Exalted says: “trade the Hereafter for the life of this world.” [338] al-Baqarah, 86. “The Hereafter” and “the life of this world” are both described as types of life, so the price is determined by that which is preceded by the word “for”. Therefore, “the life of this world” is the thing being purchased and “the Hereafter” is the price. [339] Fath al-`Aziz by Rafi`i (8/431).
And thirdly: Because specification does not make the transaction permissible. The transaction is permissible if a certain amount of dirhams are named in general, without specification of individual coins. Furthermore, the objective of the transaction is profit, which is achieved by the value of dirhams, not the specific coins that are used.
[356] Al-Mabsut by Sarakhsi (14/15). Fourthly: Not naming the price or ambiguity concerning the price in a transaction
1. An unknown price
The scholars differed on the ruling of a transaction when the price is unknown with two opinions.
- The first opinion states that a transaction with an unknown price is invalid, and this was agreed upon by the four jurisprudential schools of thought, the Hanafis,
[357] According to the Hanafis, the trade is concluded but is invalid. Tabyin al-Haqa’iq by Zayla`i (4/79), Al-Binayah Sharh Al-Hidayah by `Ayni (8/15), Al-Bahr al-Ra’iq by Ibn Nujaym (5/281), and Hashiyat Ibn `Abidin (4/505). Malikis,
[358] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/15) and Minah al-Jalil by `Ulaysh (4/465). Shafi`is,
[359] Al-Majmu` by Nawawi (9/333). and Hanbalis,
[360] Al-Insaf by Mardawi (4/223) and Kashshaf al-Qina` by Bahuti (3/173). and a consensus was reported to this effect.
[361] Ibn al-Mundhir said: “They unanimously agreed that if someone sells a commodity for a price that is unknown, unspecified, unset, and unavailable in kind, then the trade is invalid.” Al-Ijma`, p. 99. Ibn `Abd al-Barr said: “The consensus of the Sunnah is that only a known price is permissible.” Al-Istidhkar (6/433). `Ayni said: “‘General prices’ means ‘prices without specification’. The contract is not valid with them, and everything that is obligatory in the contract is prevented by this not knowing which leads to disputes. ‘This’ means ‘the ignorance that leads to disputes is a preventive factor’. ‘It is the default position’ means ‘as established in the subject of trade by consensus.’” Al-Binayah Sharh Al-Hidayah (8/15). Evidence:
Firstly: From the SunnahAbu Hurayrah narrated, “The Messenger of Allah forbade transaction by stone throwing and transactions involving risk.”
[362] Reported by Muslim (1513). An unknown price is a risk, so the prohibition related in the hadith applies.
[363] Al-Majmu` by Nawawi (9/333). Secondly: Because the price is one of the things being traded, so knowledge of it is a prerequisite, as with the commodity. [364] Kashshaf al-Qina` by Bahuti (3/173) and Al-Sharh al-Mumti` by Ibn `Uthaymin (8/170).
Thirdly: Because a commodity is allowed to be returned for a defect or similar. If the price is unknown, then it will be impossible to return it. [365] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/372).
And fourthly: Because when a specification is unknown, disputes arise, with the buyer wanting to pay the minimum and the seller requesting the maximum. Therefore, the legislated objective of the transaction is not achieved. [366] Hashiyat Ibn `Abidin (4/529).
- The second opinion states that a transaction with an unknown price is valid, and this was a position related from Ahmad [367] Majmu` al-Fatawa (29/344). and the preferred opinion of Ibn Taymiyyah [368] Ibn Taymiyyah said: “If he sold [a commodity] without naming the price, then the trade is valid for a typical price, as is the case with [the mahr in] marriage.” Al-Fatawa al-Kubra (5/387). See also Majmu` al-Fatawa by Ibn Taymiyyah (29/344) and Al-Insaf by Mardawi (4/223). and Ibn al-Qayyim [369] Ibn al-Qayyim said: “Buying and selling at a price has continued to exist in Islam to the extent that those who deny it find no alternative. Indeed, they take whatever they need from the butcher, the baker, and others every day without negotiating a price for each item. Then, at the end of the month or year, they settle the accounts and pay the total amount. What they take every day is taken at the prevailing price without negotiation. The same goes for renting services like entering public baths, washing laundry, cooking, and baking; people have continued to do this without specifying the price. Allah has permitted marriage without specifying a mahr, and the Prophet g judged by the same ruling, and if this is the case for marriage, then it is even more befitting and appropriate for other contracts, such as sales and rentals.” Bada’i` al-Fawa’id (4/75).
Evidence:
Firstly: From the Book
Allah Exalted says, “There is no blame if you divorce women before the marriage is consummated or the dowry is settled.” [370] al-Baqarah, 236.
This verse indicates that a marriage contract is valid without a specified dowry. If it is permissible for the “price” to remain unspecified in a marriage contract, then it is even more appropriate for the same ruling to apply in transactions. [371] Tafsir al-Tabari (5/120), Tafsir al-Sam`ani (1/241), Al-Insaf by Mardawi (4/223), and Al-Fatawa al-Kubra by Ibn Taymiyyah (5/387).
Secondly: From the Sunnah
Ibn Umar narrated, “We were with the Prophet on a journey and I was riding a difficult young camel which belonged to Umar. It was overcoming me and advancing ahead of the people, and then Umar would check it and force it back. Then, it would advance again, and again Umar would check it and force it back. The Prophet said to Umar, ‘Sell it to me.’ ‘It is yours, O Messenger of Allah’, [372] Translator’s note: i.e., as a gift. he replied.
‘Sell it to me’, the Prophet repeated. So, Umar sold it to the Messenger of Allah g. The Prophet then said: ‘It is yours, O `Abdullah ibn Umar. Do whatever you wish with it.’” [373] Reported by Bukhari (2115).
This hadith indicates that Umar sold the camel to the Messenger of Allah in a general way and without specifying the price. This shows that it is permissible to conduct a sale without specifying a price. [374] Nazirat al-`Aqd by Ibn Taymiyyah, p. 236.
Thirdly: Compensation with an unspecified price is established by text and consensus in relation to a marriage contract, as mentioned above, and in relation to hiring a woman to breastfeed one’s children, as elucidated in the Statement of Allah Exalted: “And if they nurse your child, compensate them.” [375] al-Talaq, 6. Both in ancient and modern times, many people’s work was based on hire contracts. [376] Bada’i` al-Fawa’id by Ibn al-Qayyim (4/75).
2. Ambiguity in the price when there are two options and the two parties to a transaction depart without specifying one of the two [377] For example, if a person says, “I hereby sell you this garment for ten coins, or for twenty after a month”, and then the seller and buyer depart from the meeting without specifying which of the two prices will be paid.
The scholars differed on the ruling of a transaction with ambiguity in the price when there are two options and the two parties depart without specifying one of the two [378] If one of the parties specifies one of the two prices during the meeting and the other party agrees, then the transaction is valid. with two opinions.
- The first opinion states that the transaction is invalid, and this was the opinion of the majority [379] The Malikis take the view that it is not permissible if it is binding, but it is permissible if it is optional, meaning that the person has the choice to either accept or decline. See Mawahib al-Jalil by Hattab (6/228) and Minah al-Jalil by `Ulaysh (5/37). – the Hanafis, [380] Al-Mabsut by Sarakhsi (5/158) and Al-Bahr al-Ra’iq by Ibn Nujaym (5/303). Shafi`is, [381] Al-Majmu` by Nawawi (9/338) and Rawdat al-Talibin by Nawawi (3/399). and Hanbalis [382] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/373) and Al-Insaf by Mardawi (4/225). – and the view of a group of the predecessors, [383] This view was related from al-Zuhri, Qatadah, al-Hakam, Hammad, Ibrahim al-Nakha`i, and al-Thawri. See Musannaf `Abd al-Razzaq (8/137) and Musannaf Ibn Abi Shaybah (4/307). and a consensus was reported on this issue. [384] Nawawi said: “The Shafi`is and other scholars explained the nature of two trade offers within one transaction. One offer is where a person says, ‘I sell you this for ten in cash or twenty on credit,’ and the other is where a person says, ‘I sell you this for a hundred on the condition that you sell me your house for such-and-such.’ The author mentions these two explanations in the chapter that follows this one, as well as in his closing remarks. The Companions and others mentioned both interpretations, with the first one being more well-known. According to both interpretations, the sale is invalid by consensus.” Al-Majmu` (9/338).
Evidence:
Firstly: From the Sunnah
Abu Hurayrah narrated, “The Messenger of Allah forbade two transactions in one.” [385] Reported by Tirmidhi (1231), Nasa’i (4632), and Ahmad (9584). Tirmidhi said: “Hasan sahih.” Graded sahih by Ibn `Abd al-Barr in Al-Istidhkar (5/458), Ibn al-`Arabi in Al-Qabas (2/842), Nawawi in Al-Majmu` (9/339), and Ibn al-Mulaqqin in Al-Badr al-Munir (6/496). Albani said in Sahih Sunan al-Nasa’i (4632): “Hasan sahih.” Graded hasan by Wadi`i in Al-Sahih al-Musnad (1383).
An ambiguous price falls under two transactions in one, which is prohibited. [386] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/373).
Secondly: From the narrations
Ibn Mas`ud said: “It is not valid to conduct two trades in one, which is to say: ‘It is deferred for such-and-such and such-and-such a period, and for such-and-such and such-and-such a price.’” [387] Reported by `Abd al-Razzaq (14633), Ibn Abi Shaybah (20828) with some minor differences, and al-Shashi in Al-Musnad (294) in condensed form. The wording here is from `Abd al-Razzaq. Also reported by Ahmad (3725) with the wording, “It is not valid (la tasluhu) to conduct two trades in one”; Bazzar (2016) with the wording, “It is not valid (la yasluhu)”; and Ibn Hibban (5025) with the wording, “It is not permissible (la tahillu)”. Graded sahih by Ibn Hibban, and sahih li ghayrih by Shu`ayb al-Arna’ut in his explication of Musnad Ahmad (3725). Ahmad Shakir graded its chain sahih in his explication of Musnad Ahmad (5/274), as did Albani in Silsilat al-Ahadith al-Sahihah (5/420).
And thirdly: Because an unknown price is not sound, just as if someone was to say: “I hereby sell you one of these two items.” [388] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/373, 374).
- The second opinion states that the transaction is valid, and this was a view reported from the Hanbalis, [389] Criticising Abu al-Khattab’s explication, Burhan al-Din ibn Muflih said: “If someone says, ‘I sell you this for ten in sound pieces [of money] or eleven broken pieces, or for ten in cash or twenty on credit’, the trade is not valid. “And it is possible that it could be valid”; this was Abu al-Khattab’s explication. Al-Mubdi` (4/34). See also Al-Insaf by Mardawi (4/225). the preferred view of Ibn al-Qayyim, [390] Ibn al-Qayyim said: “There may be a need for a lease contract to be ambiguous and unspecified. For example, if one person says to another, ‘If you ride this animal to a certain place, you will get ten, and if you ride it to another place, you will get fifteen’; ‘If you mend this shirt today, you get one dirham, and if you mend it tomorrow, half a dirham’; or ‘If you plant this piece of land with wheat, you get a hundred, or with barley, you get fifty’; and so on. All of this is valid and sound. There is no evidence indicating its invalidity from the Qur’an, the Sunnah, the scholarly consensus, or analogical reasoning. Rather, these pieces of evidence suggest its validity. Although there may be some later conflicting opinions, there is no known dispute amongst the Companions regarding its permissibility, as mentioned by Bukhari in his Sahih, where he reports that Umar he gave his land to someone to cultivate. He said, “If Umar brings the seeds, he will get this much, and if he brings the seeds, he will get that much.” No Companion opposed him, and there is no danger, risk, uncertainty, unlawful consumption of others’ wealth, or ignorance regarding the work or price in that, for it only occurs with specific details, and the option is given to the renter. Meaning, he can pick whichever of the choices he prefers. It is as if he said to him, “Which garment will you take from these clothes? Its value is this much”; “Which animal will you ride? Its rent is this much”; “The rent for this horse is this much and the rent for this donkey is that much. Choose whichever you prefer”; or “The price of this garment is one hundred and the price of this garment is two hundred”; and other, similar statements, none of which involve risk, ignorance, usury, or injustice.” I`lam al-Muqi`in (3/445). and the implication of Ibn Taymiyyah’s statements on unknown prices in transactions. [391] Ibn Taymiyyah said: “If he sold [a commodity] without naming the price, then the trade is valid for a typical price, as is the case with [the mahr in] marriage.” Al-Fatawa al-Kubra (5/387). See also Majmu` al-Fatawa by Ibn Taymiyyah (29/344) and Al-Insaf by Mardawi (4/223).
Evidence:
Firstly: From the Sunnah
Ibn Umar narrated, “We were with the Prophet on a journey and I was riding a difficult young camel which belonged to Umar. It was overcoming me and advancing ahead of the people, and then Umar would check it and force it back. Then, it would advance again, and again Umar would check it and force it back. The Prophet said to Umar, ‘Sell it to me.’ ‘It is yours, O Messenger of Allah’, [392] Translator’s note: i.e., as a gift. he replied.
‘Sell it to me’, the Prophet repeated. So, Umar sold it to the Messenger of Allah. The Prophet then said: ‘It is yours, O `Abdullah ibn Umar. Do whatever you wish with it.’” [393] Reported by Bukhari (2115).
This hadith indicates that Umar sold the camel to the Messenger of Allah in a general way and without specifying the price. This shows that it is permissible to conduct a sale without specifying a price. [394] Nazirat al-`Aqd by Ibn Taymiyyah, p. 236. Therefore, a sale with two options in which the two parties without specifying one of the two is even more worthy of being valid.
And secondly: Because there is no harm or unfamiliarity in such a transaction, for it only occurs in a defined way. [395] I`lam al-Muqi`in by Ibn al-Qayyim (3/445).
Fifthly: Selling without a price (i.e., a gift)
If someone says, “I sell you this without a price”, the transaction is valid and the item is a gift. This was the opinion of the Shafi`is [396] Al-`Aziz Sharh al-Wajiz by Rafi`i (9/221), Rawdat al-Talibin by Nawawi (4/6), and Al-Wasit by al-Ghazzali (3/85). and a view related from the Hanafis [397] Al-Binayah Sharh Al-Hidayah by `Ayni (8/201) and Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/3). . This is because the statement conveys its meaning, which is the transfer of possession for no cost. [398] Al-Wasit by Ghazzali (3/85).
Sixthly: Increasing or decreasing the price in a transaction
1. Increasing or decreasing the price before the agreement becomes binding [399] Meaning, if the agreement is still within a period of choice that is either due to the two parties still being assembled or has been stipulated [in the agreement].
An increase or decrease in the price of a transaction before the agreement becomes binding is adhered to, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [400] Al-Hidayah by Marghinani (3/60) and Tabyin al-Haqa’iq by Zayla`i (4/84). Malikis, [401] Ibn Rushd stated that Malik’s position is that it is adhered to even if it occurs after the conclusion of the trade. Therefore, it is more appropriate for it to be adhered to if it occurs before the agreement becomes binding. Bidayat al-Mujtahid by Ibn Rushd (2/207) and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/35). There is evidence of this in their sources concerning murabahah trades. See Mawahib al-Jalil by Hattab (6/439) and Al-Taj wa al-Iklil by Mawwaq (4/492). Shafi`is (according to the most accurate opinion), [402] Fath al-`Aziz by Rafi`i (8/214; 9/10), Rawdat al-Talibin by Nawawi (5/90), and Al-Majmu` by Nawawi (9/375). and Hanbalis, [403] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/444), Al-Insaf by Mardawi (4/318), and Kashshaf al-Qina` by Bahuti (3/234). and a consensus was reported on this issue. [404] Ibn Qudamah said, regarding an increase or decrease in the price: “If this occurs within the period of the option, it becomes part of the contract, and it should be reported in the price. This was the view of Shafi`i and Abu Hanifah, and I do not know of any difference of opinion from others.” Al-Mughni (4/137).
This was for the following reasons:
Firstly: Because by decreasing or increasing the price, they are simply changing the agreement from one legally acceptable form to another, be it profitable, loss-bearing, or equitable. Both parties have the right to increase the price, so it is even more befitting for them to have the right to change it, and it becomes like them dropping or stipulating the option after the agreement. [405] Al-Hidayah by Marghinani (3/60).
And secondly: Because an agreement before it has been finalized is not binding, therefore its price can be subject to increase or decrease. It overrides the original amount and is reported in the same manner. [406] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/445).
2. Increasing or decreasing the price after the agreement becomes binding [407] If a transaction has been completed and confirmed and a period of choice that is either due to the two parties still being assembled or has been stipulated [in the agreement] has expired, it becomes binding, and neither the seller nor buyer has the right to cancel or revoke it except by mutual agreement. If the increase or decrease in the price occurs before the agreement becomes binding, then it is attached to the original agreement and is considered part of the price. However, if the increase or decrease in the price occurs after the agreement becomes binding, the scholars differed as to whether it is attached to the original agreement or is not attached to the original agreement and, in the case of an increase, is considered a gift.
The scholars differed regarding increasing or decreasing the price before the agreement becomes binding with two opinions.
- The first opinion states that an increase or decrease in the price of a transaction after the agreement has been finalized is adhered to, and this was the position of the Hanafis [408] Al-Hidayah by Marghinani (3/60) and Tabyin al-Haqa’iq by Zayla`i (4/84). and Malikis [409] Bidayat al-Mujtahid by Ibn Rushd (2/207) and Ahkam al-Qur’an by Ibn al-`Arabi (1/500). See also Al-Taj wa al-Iklil by Mawwaq (4/492) and Mawahib al-Jalil by Hattab (6/439). and an opinion related from Ahmad [410] Al-Insaf by Mardawi (4/320). .
Evidence:
Firstly: From the Book
The Statement of Allah Exalted, “No sin is committed by you if you agree to any change to the dowry after establishing the obligation.” [411] al-Nisa’, 24.
If an increase in dowry overrides the original dowry, then the same should apply to an increase in price in a transaction. [412] Bidayat al-Mujtahid by Ibn Rushd (3/207).
And secondly: Because it is part of the price and therefore overrides the original amount and is reported in the same manner. [413] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/445) and Bada’i` al-Sana’i` by Kasani (5/261).
- The second opinion states that an increase or decrease in the price of a transaction after the agreement has been finalized is not adhered to and is instead counted as a gift, and this was the position of the Shafi`is [414] Rawdat al-Talibin by Nawawi (5/90), Al-Majmu` by Nawawi (9/375), and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/429). and Hanbalis [415] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/444), Al-Insaf by Mardawi (4/318), and Kashshaf al-Qina` by Bahuti (3/234). and a view of the Malikis. [416] Ahkam al-Qur’an by Ibn al-`Arabi (1/500). This is because it is voluntarily offered from one of the parties to the other and is not a recompense for something. [417] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/445).
Seventhly: Disposing of the price before possession is exchanged
1. Disposing of a non-cash price before possession is exchanged [418] A “non-cash price” refers to goods and benefits other than cash.
It is permissible for the buyer to dispose of a non-cash price before receiving it in full, and that is agreed upon by the four jurisprudential schools of thought: [419] This is in certain situations and subject to restrictions that are well-known to them. the Hanifis, [420] According to the Hanafis, it is permissible to dispose of the price if it is present and not part of a deferred payment. However, if the price is considered an owed debt, then it is only permissible to dispose of it by taking possession of it from the buyer. Hashiyat Ibn `Abidin (5/152). Malikis, [421] According to the Malikis, it is permissible to dispose of the price before possession is exchanged except if it is a foodstuff, in which case it is not permissible to dispose of it before taking possession of it. Mawahib al-Jalil by Hattab (6/422) and Minah al-Jalil by `Ulaysh (5/246). Shafi`is, [422] According to the Shafi`is, it is permissible to dispose of the price if it is considered a debt. However, if the price is specific and not considered a debt, it is not permissible to dispose of it before taking possession of it. Minhaj al-Talibin by Nawawi, p. 103, and Tuhfat al-Muhtaj li al-Haytami wa Hawashi al-Sharwani wa Ibn al-Qasim (4/403). and Hanbalis. [423] According to the Hanbalis, it is permissible to dispose of the price before taking possession of it if there is no need for weighing or counting. However, it is not permissible to substitute it if it is specific. Al-Iqna` by Hajawi (2/109), Kashshaf al-Qina` by Bahuti (3/241, 270), and Sharh Muntaha al-Iradat by Bahuti (2/78). This is because ownership is absolute for the purpose of disposal, and the buyer has established ownership over it. The prohibition mentioned in some cases is to avoid potential abuse in cases of annulment, which is not applicable to the non-cash price because it is in the possession of the seller and does not require specification. [424] Tabyin al-Haqa’iq by Zayla`i (4/82).
2. Disposing of a cash price (exchanged currency) before possession is exchanged [425] For example, if a person transfers one hundred riyals to another in exchange for thirty dollars, and then before receiving the thirty dollars disposes of them by giving them as a gift, donating them in charity, or making a purchase with them.
Disposing of an exchanged currency before possession is exchanged is not permissible, and that is the position of the majority: the Hanafis, [426] Hashiyat Ibn `Abidin (5/260) and Al-Fatawa al-Hindiyyah (3/229). Shafi`is, [427] Minhaj al-Talibin by Nawawi, p. 103, and Tuhfat al-Muhtaj by Haytami (4/407). See also Al-Hawi al-Kabir by Mawardi (5/148, 221) and Takmilat Al-Majmu` Sharh al-Muhadhdhhab by Subki (10/105). and Hanbalis. [428] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/119) and Kashshaf al-Qina` by Bahuti (3/245).
This is for the following reasons:
Firstly: Because taking ownership of it has not been completed, making it like dealing with the someone else’s property. [429] Kashshaf al-Qina` by Bahuti (3/245).
Secondly: Because if the price were to be exchanged, the meaning of the statement of the Prophet, “A specified good for a specified good”, would not be achieved, neither at the time of the contract nor during the meeting of the two parties. Therefore, it must be invalid, and the distinction between it and a non-cash price is that a cash price is not stable, because it is subject to invalidation through separation before its acquisition, unlike the non-cash prices. [430] Takmilat Al-Majmu` Sharh al-Muhadhdhhab by Subki (10/105).
Thirdly: Because taking possession of it as per the contract is a right for the sake of Allah Exalted, and allowing it to be disposed of before the transfer of possession will result in the forfeiture of that right. [431] Al-Hidayah by Marghinani (3/82).
Fourthly: Because the buyer’s ownership of it is removed by the delay in taking possession of it. Because ownership is not firmly established on something that has not yet been received, its sale is not permissible, because selling something over which one’s ownership is not firmly established is invalid. [432] Al-Hawi al-Kabir by Mawardi (5/221).
And fifthly: Because it entails selling what has not been taken possession of and is not possible to deliver, and selling what cannot be delivered is void, as is the case with selling a runaway servant or a lost camel. [433] Al-Hawi al-Kabir by Mawardi (5/221).
Eighthly: The price wholly or partly perishing before it is handed over
A transaction is invalidated and rescinded if the price that has been specified [434] This refers to those that require specification, such as real estate, land, animals, and all measured and weighed items. They differed regarding coins, whether they require specification or not. An example of those which do not require specification are debts, because they are under a contractual obligation. perishes (partly or wholly) before it is handed over, and that is the position of the majority: the Hanafis, [435] Al-Mabsut by Sarakhsi (13/166), Al-Bahr al-Ra’iq by Ibn Nujaym (6/218), and Al-Fatawa al-Hindiyyah (3/27). See also Durar al-Hukkam by `Ali Haydar (1/299). Shafi`is, [436] Nihayat al-Muhtaj by Ramli (4/76) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393). and Hanbalis. [437] Al-Furu` by Ibn Muflih (6/283) and Al-Insaf by Mardawi (4/338). This was based on the analogy of the commodity, because when the price is specified, it is also a commodity. [438] Al-Mabsut by Sarakhsi (13/166).
Ninthly: How the price should be paid in a general trade [439] The default position is for the price to be paid immediately. See Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/726), Al-Binayah Sharh Al-Hidayah by `Ayni (8/16), and Majallat al-Ahkam al-`Adliyyah, p. 51. In some trades, hastening the payment of the price is obligatory, such as in the exchange of usurious funds, the exchange of currencies, and the upfront payment in a salam trade. Ibn al-Mundhir said: “There is a consensus that the six types are to be exchanged hand-to-hand, and deferring for any of them is impermissible and prohibited. There is also a consensus that if the two parties to a trade separate before the exchange occurs, then the transaction is void.” Al-Ijma`, p. 97.
1. Deferred payment
Deferring payment is permissible.
Evidence:
Firstly: From the Book
The Statement of Allah Exalted, “When you contract a loan for a fixed period of time, commit it to writing.” [440] al-Baqarah, 282.
Allah Exalted commanded writing down loan agreements. This indicates the permissibility of a transaction with a deferred payment, which will thereby be a loan. [441] `Umdat al-Qari by `Ayni (12/225) and Tafsir al-Sa`di, p. 959.
And the Statement of Allah Exalted, “Allah has permitted trading.” [442] al-Baqarah, 275.
Allah permitted trade in general, and He did not distinguish between transactions involving immediate and deferred payments. [443] Al-Binayah Sharh Al-Hidayah by `Ayni (8/16).
Secondly: From the Sunnah
`A’ishah narrated that the Prophet bought some food from a Jew on credit and pawned his iron armour with him. [444] Reported by Bukhari (2068) and Muslim (1603). The wording here is from Bukhari.
Thirdly: From the scholarly consensus
A consensus on this issue was related by Ibn al-Mundhir, [445] Ibn al-Mundhir said: “The scholars unanimously agree that it is permissible to sell known goods with a known price and a known term, either consisting of the months of the Arabs or a specific number of days, and they said the same regarding a salam trade with a known term.” Al-Awsat (10/280). Ibn Battal, [446] Ibn Hajar transmitted it from him, saying: “Ibn Battal said: ‘Buying with a delayed payment is permissible by consensus.’” Fath al-Bari (4/302). Ibn Hazm, [447] Ibn Hazm said: “As for selling an immediate, visible item that can be exchanged for its equivalent or for dinars or dirhams that are readily available or selling it on credit with a specified term or for an immediate payment that is in the buyer’s possession, there is a consensus that it is permissible.” Al-Muhalla bi al-Athar (7/214). and `Ayni. [448] `Ayni said: “They unanimously agreed that purchasing with debt is permissible.” `Umdat al-Qari (12/225).
2. Deferred payment in exchange for an increase in price
It is permitted to agree a deferred payment that is greater than the selling price would have been had it been paid up front, and that is agreed upon by the four jurisprudential schools of thought: the Hanifis, [449] Al-Hidayah by Marghinani (3/58), Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/73), and Al-Bahr al-Ra’iq by Ibn Nujaym (6/125). Malikis, [450] Sharh al-Zurqani `ala Mukhtasar Khalil (5/138) and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/58). See also Sharh Mukhtasar Khalil by Kharashi (5/73). Shafi`is, [451] Fath al-`Aziz by Rafi`i (5/498) and Rawdat al-Talibin by Nawawi (3/399). and Hanbalis. [452] Kashshaf al-Qina` by Bahuti (3/338) and Matalib ‘Uli al-Nuha by Rahibani (3/263, 264).
Evidence:
Firstly: From the Book
The Statement of Allah Exalted, “O believers! When you contract a loan for a fixed period of time, commit it to writing. Let the scribe maintain justice between the parties. The scribe should not refuse to write as Allah has taught them to write.” [453] al-Baqarah, 282.
This verse applies to loans in general, and a deferred payment in exchange for an increase in price falls into this category. [454] Fatawa li al-Lajnat al-Da’imah – Al-Majmu`at al-‘Ula (13/148, 149).
And the Statement of Allah Exalted, “Allah has permitted trading.” [455] al-Baqarah, 275.
In its generality, this verse also indicates the permissibility of trades with deferred payments. [456] Fatawa li al-Lajnat al-Da’imah – Al-Majmu`at al-‘Ula (13/148).
And secondly: Seller does not sell something for the same price for a deferred payment as an upfront payment. In this instance, the seller benefits from the increase in price and the buyer benefits from the deferment in payment. [457] Fatawa Nur `ala al-Darb by Ibn `Uthaymin (9/65).
3. Paying in instalments (i.e., transactions by instalment) [458] A transaction by instalment is when a commodity is sold for a deferred price that is greater than the immediate price and which is paid in instalments. See Majallat al-Ahkam al-`Adliyyah, p. 33, and Fatawa li al-Lajnat al-Da’imah – Al-Majmu`at al-‘Ula (13/161).
Transactions by instalment are permissible, and this was stated by the Permanent Committee in Saudi Arabia, [459] The Permanent Committee issued the following verdict: “Trades by instalment involve the sale of a commodity at a deferred price, to be paid in separate instalments. As for the issue of speculation, it is when a person buys goods at a deferred price to sell them in the market to someone other than the debtor, and he benefits from their price. When the due date arrives, he pays the original seller the deferred price he bought them for. Transactions by instalment are permissible, and there is no consideration for the opinion that deems it impermissible due to its anomalous nature and absence of evidence.” Fatawa li al-Lajnat al-Da’imah – Al-Majmu`at al-‘Ula (13/161). the Islamic Fiqh Academy, [460] See the decision of the Islamic Fiqh Academy, no. (53/2/6), issued during its sixth conference in Jeddah, Kingdom of Saudi Arabia, from 17-23 Sha`ban 1410 AH / 14-20 March 1990 CE. Ibn Baz, [461] Ibn Baz was asked about the ruling on selling commodities on instalment with an increase in their price compared to the original price. He replied: “There is no harm if he sells it on instalment and increases the price, because a trade with a deferred payment is different from a cash sale. So, if a car is worth fifty thousand in cash, and he sells it for sixty or seventy thousand, with an annual or monthly payment of such-and-such, there is no harm. This falls under the verse of Allah: ‘O believers! When you contract a loan for a fixed period of time, commit it to writing’ (al-Baqarah, 282). There is nothing wrong with it. This is selling on credit, selling a debt, and there is no harm in that. It is established from the Prophet g that he approved the people of Barirah when they sold her for nine awaq, with one uqiyyah to be paid each year. They sold her for nine awaq with a term of nine years, and each year [they would pay] one uqiyyah, which was [the equivalent of] forty dirhams. This is a form of [trade by] instalment.” Fatawa Nur `ala al-Darb (19/15). and Ibn `Uthaymin, [462] Ibn `Uthaymin said: “There are different examples of trade by instalment, as the questioner stated. A permissible example is if a person buys a commodity that the seller has – which is worth 1000, [for example] – for 1500, payable over a year. His intended objective is the commodity itself, and this is permissible by consensus. Or, he may intend to trade with this commodity by buying it in one town and then taking it to another to sell it at a higher price. This is also permissible by consensus. For example, a man comes to an individual who has a villa which is worth 400,000 in cash and says, ‘I want to buy it from you for 500,000, payable over a year.’ If they agree to this, there is no harm, [again] by consensus.” Fatawa Nur `ala al-Darb (9/54). and is the implication of the statements of the four jurisprudential schools of thought. [463] The classical jurists did not specifically address the contemporary form of instalment sales, but there is no practical distinction between a deferred price for multiple periods, which is instalment sales, and a deferred price for a single period, to whose permissibility the four jurisprudential schools of thought agreed upon. Refer to the previous section for further discussion.
4. Requiring instalments to be brought forward if one is paid late [464] For example, the seller stipulating that if the buyer is late in paying one of the instalments, then all the instalments must be paid at once.
In transactions by instalment, it is permissible for the seller to require instalments to be brought forward if one has been paid late, so long as the debtor accepted this stipulation when the original agreement was made, and this was documented in the decision of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation [465] Decision no. (53/2/6) stated: “It is permissible according to the Shariah for the seller to stipulate in deferred payment transactions that the instalments must be settled before their due dates in case the debtor delays in paying some of them, so long as the debtor agreed to the condition at the time of drawing up the contract.” Majallah Majma` al-Fiqh al-Islami, issue 6, (1/448). and was the judgement of the Jordanian Department of Religious Rulings (Dar al-Ifta’). [466] The verdict issued by the Jordanian Department of Religious Rulings stated the following: “There is no objection to the creditor stipulating that the debtor settles all instalments in the case of delay in fulfilling [payments], for there is nothing preventing this stipulation [from being applied]. If the debtor agrees and consents, he is obligated to comply with the stipulation. The Prophet g said: ‘Muslims are bound by their stipulations, except a stipulation that forbids what is permissible or allows what is impermissible.’” The Official Website of the Jordanian Department of Religious Rulings – verdict no. 939.
Evidence:
Firstly: From the Sunnah
The Messenger of Allah said, “Muslims are bound by their stipulations.” [467] Reported by Bukhari in an emphatic form (sighat al-jazm) before hadith no. (2274), by Abu Dawud (3594) in a mawsul narration, and by Hakim (2309) from Abu Hurayrah h. Authenticated by Ibn Hibban in his Sahih (5091), and `Abd al-Haqq al-Ishbili authenticated its chain in Al-Ahkam al-Sughra (718). Nawawi said in Al-Majmu` (9/368): “Its chain is either hasan or sahih.” Ibn al-Muqallin graded its chain hasan in Khalasat al-Badr al-Munir (2/69), as did Ibn Kathir in Irshad al-Faqih (2/54). Albani said in Sahih Sunan Abu Dawud (3594): “Hasan sahih.”
Secondly: From the narrations
Umar ibn al-Khattab said, “Indeed, rights are subject to stipulations, and you are entitled to that which you stipulate.” [468] Reported by Bukhari in an emphatic form (sighat al-jazm) before hadith no. (5151) and in an emphatic form before hadith no. (2721), by Ibn Abi Shaybah (16706) in a mawsul narration, and by Sa`id ibn al-Mansur in Al-Sunan (663). Albani graded its chain sahih according to the conditions of the two Shaykhs in Irwa’ al-Ghalil (6/304), as well as authenticating it (1891) with the wording: “Rights are subject to stipulations.”
Tenthly: Withholding the price until the commodity is received
1. Withholding the price until the commodity is received when the price is deferred
If the seller and buyer disagree, with the seller saying, “I will not hand over the commodity until I take possession of its price”, and the buyer saying, “I will not hand it over until I take possession of the commodity”, and the price is deferred, the seller is compelled to deliver the goods and then the buyer is compelled to pay the price. This was the preponderant position of the Shafi`is, [469] Rawdat al-Talibin by Nawawi (3/524). See also Al-Hawi al-Kabir by Mawardi (5/308). the position of the Hanbalis, [470] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10) and Al-Insaf by Mardawi (4/331). and the preferred opinion of Ibn `Uthaymin. [471] Ibn `Uthaymin said: “In the statement, 'and if it is an immediate debt, the seller is compelled and then the buyer, if the price is present in the sitting', the pronoun in the phrase, 'if it is', refers back to the price, because he said earlier: 'and the price is specific.' Therefore, if it is an immediate debt, the seller is compelled, and then the buyer, if the price is present in the sitting.” Al-Sharh al-Mumti` (8/360).
This is for the following reasons:
Firstly: The right of the buyer is associated with the specific commodity being sold, whereas the right of the seller is associated with the deferred price. Therefore, it is obligatory to prioritize what is associated with the specific commodity, just as the pawnbroker of a specific item is given precedence over other creditors. [472] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10).
And secondly: The settlement of the contract is contingent upon taking possession. Therefore, it is obligatory to compel the seller to ensure that taking possession occurs so that the contract can be finalized. [473] Al-Hawi al-Kabir by Mawardi (5/308) and Rawdat al-Talibin by Nawawi (3/524).
2. Withholding the price until the commodity is received when the price is specific
If the seller and buyer disagree, with the seller saying, “I will not hand over the commodity until I take possession of its price”, and the buyer saying, “I will not hand it over until I take possession of the commodity”, and the price is specific, then the commodity and price are handed over at the same time, and this was the position of the Hanafis [474] Tabyin al-Haqa’iq by Zayla`i (4/14) and Al-Fatawa al-Hindiyyah (3/16). and a view of the Hanbalis. [475] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10) and Al-Insaf by Mardawi (4/330).
This is because when the price is specific, there is no distinction between the commodity and the price and neither has more right to precedence in being handed over before the other. Therefore, it is correct that they are delivered at the same time. [476] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10).
Eleventhly: Handing over the price in an option sale
It is permitted to hand over the price and take possession of the commodity at any time within the period of the option, and this was agreed upon by the four jurisprudential schools of thought: the Hanifis, [477] The statements of the Hanafis indicate the permissibility of that. Kanz al-Daqa’iq by al-Nasafi, p. 411; Al-Binayah Sharh Al-Hidayah by `Ayni (8/53); and Al-Bahr al-Ra’iq by Ibn Nujaym (6/6). Malikis, [478] According to the Malikis, if the seller makes cash [payment] a stipulation upon the buyer, then the trade is invalid. Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/702), Mawahib al-Jalil by Hattab (6/314), Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/96), and Minah al-Jalil by `Ulaysh (5/122). Shafi`is, [479] Al-Majmu` by Nawawi (9/223). and Hanbalis. [480] Al-Iqna` by Hajawi (2/90) and Kashshaf al-Qina` by Bahuti (3/210).
This is for the following reasons:
Firstly: Because taking possession is one of the rulings of the contract and should therefore happen within the period of the option, as with revocation or completion. [481] Al-Majmu` by Nawawi (9/224).
Secondly: Because there is no harm in taking possession at any time within the period of the option, and what does not cause harm is not prohibited. Withholding delivery until any point before the expiration of the option is a right of the contracting parties, so if they agree to it, it is permissible, as is the case with cancellation and other agreements. [482] Al-Majmu` by Nawawi (9/224).
Thirdly: Because it is one of the rulings of the transaction, it is permissible within the period of the option, as is the case with hiring out. [483] Al-Mughni by Ibn Qudamah (3/493).
Twelfthly: Providing the price in a transaction [484] Such as by weighing the price, measuring it, counting it, or transferring it if it is a commodity.
Providing the price in a transaction is the responsibility of the buyer, and this was agreed upon by the four jurisprudential schools of thought: the Hanifis, [485] Tabyin al-Haqa’iq by Zayla`i (4/14) and Al-Bahr al-Ra’iq by Ibn Nujaym (5/330). Malikis, [486] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/145) and Minah al-Jalil by `Ulaysh (5/230). Shafi`is, [487] Rawdat al-Talibin by Nawawi (3/521) and Al-Ghurar al-Bahiyyah by Zakariyya al-Ansari (3/6). and Hanbalis. [488] Al-Insaf by Mardawi (4/340) and Sharh Muntaha al-Iradat by Bahuti (2/62). This is because it is associated with the rights of fulfilment and the transaction will not take place without it. [489] Sharh Muntaha al-Iradat by Bahuti (2/62).
Thirteenthly: Centralised pricing
1. Defining “pricing” and its ruling
Defining “pricing”
Linguistically: The term “tas`ir” (“pricing”) originates linguistically from “si`r” (“price”), whose plural is “as`ar” (prices), just like “himl” (“load”) and “ahmal” (“loads”). In the past tense, “as`aru” and “sa``aru” convey the same meaning: “they reached an agreement on a price”. “Pricing” refers to determining a price for a particular commodity. One might say, “I determined a price for the thing”, meaning: “I assigned a known price to it.” [490] Al-Sihah by Jawhari (2/685) and Lisan al-`Arab by Ibn Manzur (4365).
Technically: “Pricing” refers to an authority or its representative determining a price for a particular commodity for the people and compelling them to engage in transactions at the price they have set. [491] Asna’ al-Mutalib by Zakariyya al-Ansari (2/38) and Matalib ‘Uli al-Nuha by Rahibani (3/62).
Ruling on pricing:
The default position regarding pricing is that it is impermissible, and this was agreed upon by the four jurisprudential schools of thought: [492] Ibn Hubayrah said: “They agreed upon the disliked nature of fixing prices amongst the people and that it is not permissible.” Ikhtilaf al-A’immat al-`Ulama’ (1/413). the Hanifis, [493] Sharh Mukhtasar al-Tahawi by al-Jassas (3/140), Al-Hidayah by Marghinani (4/377), Al-Binayah Sharh Al-Hidayah by `Ayni (12/217), and Al-Durr al-Mukhtar wa Hashiyat Ibn `Abidin (6/399). Malikis, [494] Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/730) and Al-Taj wa al-Iklil by Mawwaq (4/380). See also Al-Qawanin al-Fiqhiyyah by Ibn Juzayy, p. 169; Al-Tafri` fi Fiqh al-Imam Malik by Ibn al-Jallab (2/111); and Al-Jami` al-Masa’il al-Mudawwanah by al-Siqili (13/1052). Shafi`is, [495] Rawdat al-Talibin by Nawawi (3/413) and Mughni al-Muhtaj by Shirbini (2/38). and Hanbalis. [496] Al-Insaf by Mardawi (4/244), Sharh Muntaha al-Iradat by Bahuti (2/62), Kashshaf al-Qina` by Bahuti (3/187).
Evidence:
Firstly: From the Book
The Statement of Allah Exalted, “O believers! Do not devour one another’s wealth illegally, but rather trade by mutual consent.” [497] al-Nisa’, 29.
In His Statement, “…but rather trade by mutual consent”, [498] al-Nisa’, 29. it is understood that Allah Exalted has not permitted taking the wealth of others except by mutual consent, [499] Sharh Mukhtasar al-Tahawi by Jassas (3/140). and compelling the owner of a commodity to sell it against their liking contradicts the verse. [500] Nayl al-Awtar by Shawkani (5/260).
Secondly: From the Sunnah
Anas narrated, “Prices became excessive during the time of the Messenger of Allah, and they said, ‘O Messenger of Allah, set prices for us.’ He replied, ‘Allah is the One who sets prices, the Withholder, the Giver, and the Provider, and I hope to meet my Lord with none of you claiming an injustice against me regarding blood or wealth.’” [501] Reported by Abu Dawud (3451), Tirmidhi (1314), Ibn Majah (2200), and Ahmad (14057). The wording here is from Abu Dawud. Tirmidhi said: “Hasan sahih.” Also reported by Ibn Hibban in his Sahih (4935). Graded sahih by Ibn `Abd al-Barr in Al-Istidhkar (5/423), Ibn al-`Arabi in Al-Qabas (2/837), Ibn Daqiq in Al-Iqtirah (113), Ibn al-Muqallin in Al-Badr al-Munir (6/507), Albani in Sahih Sunan Abi Dawud (3451), and Wadi`i in Al-Sahih al-Musnad (110), where he said: “According to the conditions of Muslim.”
The term “injustice (mazlamah) regarding wealth” here refers to the act of pricing, as it is derived from the word “oppressed (mazlum)”, and his statement, from “I hope” until the end, indicates that what prevents him from setting prices is the fear of potentially treating them unfairly regarding their wealth. Setting prices is a way of handling people’s wealth without their permission, which is therefore injustice. [502] Mirqat al-Mafatih Sharh Mishkat al-Masabih by Qari (5/1951) and Tuhfat al-Ahwadhi by al-Mubarakfuri (4/452).
Thirdly: Because the price is the right of the contracting party and therefore setting it is their responsibility. [503] Al-Hidayah by Marghinani (4/377).
And fourthly: Because fixing prices causes inflation. When importers are informed of the fixed prices, they may not bring their goods to a land where they will be forced to sell them at a price they dislike, those who possess the commodity may refuse to sell it or conceal, and those in need of it therefore may be unable to find it except in small quantities. Consequently, they will pay higher prices to obtain it. This leads to an increase in prices, and both parties suffer harm. The owners are harmed by being prevented from selling their property, and the buyers are harmed by being hindered from obtaining the things they want. This makes fixing prices impermissible. [504] Al-Mughni by Ibn Qudamah (4/164).
Ruling on “pricing” when it is associated with preventing general harm:
“Pricing”, when it is associated with preventing general harm, [505] It is as if the owners of food exceed the reasonable limits excessively, or if the food becomes a necessity for buying and selling for the general public. It is also considered objectionable if merchants monopolize food with the intention of raising its price. Additionally, if the sale is restricted to specific individuals, and it is only allowed for them to buy and sell among themselves. Furthermore, if sellers conspire against buyers or vice versa, pricing is permissible in these situations, provided that the person setting the prices is fair. Pricing can apply to anything, whether it is essential or non-essential. This is because pricing is allowed to prevent harm to the public, and it is not limited to essential items. See Al-Hidayah by Marghinani (4/377, 378), Tabyin al-Haqa’iq by Zayla`i (6/28), Hashiyat Ibn `Abidin (6/400, 401), Majmu` al-Fatawa by Ibn Taymiyyah (28/75-80), and Al-Turuq al-Hukmiyyah by Ibn al-Qayyim, p. 207. is permitted. This was the position of the Hanafis, [506] Al-`Inayah by Babarti (10/59), Al-Binayah Sharh Al-Hidayah by `Ayni (12/217), and Al-Durr al-Mukhtar wa Hashiyat Ibn `Abidin (6/400). a statement from Malik preferred by some of the Malikis, [507] Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/730), Al-Muntaqa Sharh al-Muwatta’ by al-Baji (5/18), and Rawdat al-Mustabin by Ibn Buzayzah (2/996). a view of the Shafi`is, [508] Rawdat al-Talibin by Nawawi (3/413). and the preferred view of Ibn Taymiyyah [509] Ibn Taymiyyah said: “If people sell their goods in the usual manner without any injustice, and prices have increased either due to scarcity or high demand, then this matter is left to Allah. Forcing people to sell at the original value against their will is unjust. However, if sellers refuse to sell their goods essential to people except at a price higher than the known value, in this case, they must sell them at the fair value. There is no justification for pricing except to compel them to sell at the fair value.” Majmu` al-Fatawa (28/76-77). and Ibn al-Qayyim. [510] Ibn al-Qayyim said: “Regarding pricing, some forms of it are unjust and forbidden, while others are just and permissible. If pricing involves unjust treatment of people, forcing them to sell at a price they are not satisfied with, or preventing them from what Allah has allowed for them, then it is prohibited. However, if it ensures justice among people, such as compelling them to fulfill their obligation of compensation at a fair price or preventing them from taking an excessive increase beyond fair compensation, then it is permissible and even obligatory.” Al-Turuq al-Hukmiyyah, (2/638). He also said: “This principle that the Prophet (peace be upon him) commanded, which is to rectify the value of equivalent goods for everyone, is indeed the essence of pricing. Similarly, the partner is given the authority to take the share pledged in the possession of the buyer at the price he acquired it for, without any increase. This is for the sake of completing the possession for one of the partners. So, how about when it comes to something greater than that? If it is permitted for him to take it from the buyer at the price agreed upon in the contract, not at the buyer's desired price, for the sake of this partial benefit, then what about when he is compelled to take what he has, such as food, drink, clothing, and weaponry? Similarly, when the traveller is compelled to take what people have in terms of travel tools and other items, the authority in charge should compel them to provide it at the fair price, not at the price they desire. The hadith about manumission is a foundation in this regard.” Al-Turuq al-Hukmiyyah, (2/672).
Evidence:
Firstly: From the Sunnah
Abdullah ibn Umar narrated that the Messenger of Allah said, “Whoever manumits his share of a slave and possesses money equivalent to the whole price of that slave should ask a just man to assess his value, give his partners in owning the slave their shares, and then manumit the slave completely. If not, then at least he has manumitted the portion he manumitted. [511] This means that whoever manumits a share in a slave that is jointly owned between him and others, even if that share is small, he owns "property that reaches the price of the slave" shared with others. That is, the value of the remaining slave, which represents the shares of his co-owners; "the slave is valued" entirely "at the just value," meaning without increase or decrease. "So, he gave" using the construct for the doer, meaning the one who manumitted, "the partners" in that slave, "the value of their shares and portions from the slave," and he manumitted the slave. If he did not pay the value of the shares to his partners, he has only manumitted the portion he owned, meaning he manumitted only what belonged to him in that slave without considering the portions of his partners, making the slave partially freed, i.e., part of the slave is freed while the other part remains enslaved. See Irshad al-Sari li Sharh Sahih al-Bukhari by al-Qastallani (4/302), Al-Kawkab al-Wahhaj Sharh Sahih Muslim ibn al-Hajjaj by Muhammad al-Amin al-Harari (16/366). ” [512] Reported by Bukhari (2522).
If the Legislator mandates the removal of something from the ownership of its owner in exchange for its equivalent to fulfil the partner’s need to manumit, and there is no demand for the owner to receive more than half of the value, then how about someone whose need is greater than the need to manumit that share? This is similar to the necessity of a person in need of food, clothing, and other things. The Prophet commanded the equitable valuation of all things, and this is the true form of “pricing”. [513] Majmu` al-Fatawa by Ibn Taymiyyah (28/97) and Al-Turuq al-Hukmiyyah by Ibn al-Qayyim (2/671).
Jabir narrated, “The Messenger of Allah decreed a right of first refusal in every joint ownership that has not been divided, be it a dwelling or garden, and that it is not permissible for one of the owners to sell it until he seeks the permission of his partner. If he wishes, he can buy it, or if he wishes, he can leave it. If he sells it without obtaining the permission, however, then the other partner has more right to it.” [514] Reported by Muslim (1608).
The Prophet affirmed the right of first refusal for the partner and mandated the seller must give him the same price to avoid unrightfully breaching the partnership. This is a form of “pricing”, and what is more important and critical than it takes the same ruling. [515] Majmu` al-Fatawa by Ibn Taymiyyah (28/97).
And secondly: Because setting prices in this way mandates justice and prohibits injustice. Just as it is not permissible to compel someone to sell without right, it is permissible or even obligatory to compel them with a right, such as compelling them to sell property to settle a due debt. [516] Al-Turuq al-Hukmiyyah by Ibn al-Qayyim (2/640).
2. Manner of “pricing”
Pricing should be according to known market prices, which are ascertained by consulting the people of the market on the prices that commodities are bought and sold at, and this was stipulated by the Hanafis [517] Tabyin al-Haqa’iq by Zayla`i (6/28) and Al-Bahr al-Ra’iq by Ibn Nujaym (8/230). and Malikis. [518] Al-Taj wa al-Iklil by Mawwaq (4/380). See also Sharh al-Talqin by al-Mazari (2/1013). This method allows for an understanding of the interests of both sellers and buyers, ensuring that sellers receive a fair profit without causing injustice to people. When prices are imposed on them without their consent and where there is no profit for them, it leads to distortions in prices, the hiding of food supplies, and the destruction of people’s wealth. [519] Al-Muntaqa Sharh al-Muwatta’ by Baji (5/19).
3. Deviating from set prices:
The ruling on a transaction which deviates from set prices
A transaction which deviates from set prices is valid, and this was stipulated by the Hanafis [520] Al-Binayah Sharh Al-Hidayah by `Ayni (12/219), Hashiyat Ibn `Abidin (6/400), and Al-Fatawa al-Hindiyyh (3/214). and the Shafi`is according to the most accurate opinion, [521] Rawdat al-Talibin by Nawawi (3/413, 414) and Mughni al-Muhtaj by Shirbini (2/38). and it was the preponderant view of the Malikis [522] The Malikis do not permit pricing, and according to their school of thought, if a seller refuses to sell at the common price, he is expelled from the market. It is understood from this that the sale is considered valid. Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/730), Al-Qawanin al-Fiqhiyyah by Ibn Juzayy, p. 169. See also Al-Tafri` fi Fiqh al-Imam Malik by Ibn al-Jallab (2/111). and Hanbalis. [523] The Hanbalis do not permit pricing in the first place. Al-Furu` by Ibn Muflih (6/178) and Al-Mubdi` by Burhan al-Din Ibn Muflih (3/386).
Punishment for deviating from set prices:
Punishment for deviating from set prices, in situations in which setting prices is allowed, is permitted, and this was stipulated by the Hanafis [524] Tabyin al-Haqa’iq by Zayla`i (6/28). and Shafi`is. [525] Rawdat al-Talibin by Nawawi (3/413, 414) and Mughni al-Muhtaj by Shirbini (2/38). This is because it involves openly defying the leader. [526] Asna’ al-Mutalib by Zakariyya al-Ansari (2/38).
Fourteenthly: An unknown price that relies on further knowledge
The scholars differed concerning determining prices according to market prices when the market price is unknown at the time of the contract, or if the commodity is sold by its number which the buyer does not know, [527] For example, if a trader marks items of clothing with a particular symbol that indicates their price, which is known to them but unknown to the buyer, and then sells them at that price. or by what so-and-so sells it for, and the likes, [528] For example, determining the price of an item according to what the market price settles at. The form of this is a transaction with a person one has day-to-day dealings with such as bakers, butchers, grocers, and others. The buyer takes a known amount from him every day. Then, at the end of the month or year, the seller calculates the total and the buyer pays the price. with two opinions.
- The first opinion is that it is not valid, and this was agreed upon by the four jurisprudential schools of thought, the Hanafis, [529] According to them, one of the conditions for a valid sale is that the price must be known at the time of sale. For them, pricing based on market prices when the market price is not known is considered not knowing the price. Hashiyat Ibn `Abidin (4/506). Malikis, [530] The Malikis stipulate that the knowledge of the price must be detailed, and ignorance of the total price does not harm the sale if the detailed breakdown is known. For example, selling a specific quantity of goods at an unknown total price, such as selling a bushel at a certain rate, is permissible so long as the breakdown of the price is known. According to them, one of the general conditions for a valid sale is the knowledge of both the price and the item being sold, and selling at market prices where the specific price is unknown would violate this condition. Al-Taj wa al-Iklil by Mawwaq (4/277, 278), Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/15), and Minah al-Jalil by `Ulaysh (4/328, 465). Shafi`is, [531] According to them, one of the stipulations for a valid sale is that the price must be known at the time of the sale. If a seller relies on the market price without knowing it, considering the market price to be unknown, it would be considered ignorance regarding the price, and this would render the sale invalid. This is because, in their view, knowing the price is an essential element for a valid transaction. Al-Majmu` by Nawawi (9/333). and Hanbalis, [532] Sharh Muntaha al-Iradat by Bahuti (2/18), and Kashshaf al-Qina` by Bahuti (3/173). and was also the view of Ibn Hazm. [533] Ibn Hazm said: “Selling without a specified price is not valid. This includes selling based on what the item may fetch in the market, selling based on what someone else paid for it, or selling based on its value. All such transactions are invalid because they involve speculative trades and the unjust consumption of [others’] wealth.” Al-Muhalla bi al-Athar (7/512).
This was for the following reasons:
Firstly: Because it is a speculative sale (gharar) and an unlawful consumption of wealth. [534] Al-Muhalla bi al-Athar by Ibn Hazm (7/512)
And secondly: Because one of the conditions of a transaction is for the price to not be unknown, and attaching knowledge of the price to something that is unknown invalidates the transaction. [535] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/15).
- The second opinion is that it is valid, and this was a view of the Shafi`is, [536] Al-Majmu` by Nawawi (9/333). a statement related from Imam Ahmad, [537] Al-Insaf by Mardawi (4/223). and the preferred opinion of Ibn Taymiyyah [538] Ibn Taymiyyah said: “Selling with a specified quantity or numerical figure is valid, and this was stated by Imam Ahmad and was the interpretation of al-Qadi. It involves a clear and defined price, similar to how people commonly engage in transactions, and it represents one of the two opinions within the Hanbali school of thought.” Majmu` al-Fatawa (34/72). and Ibn al-Qayyim. [539] Ibn al-Qayyim said: “The second opinion, which is considered correct and established, is the permissibility of selling with a clear and defined quantity or figure that specifies the price. This is in accordance with the practices of people in every era and region. It is documented as the position of Imam Ahmad and was the preferred opinion of our Shaykh.” I`lam al-Muqi`in (4/5). He also said: “Regarding selling by specifying a quantity or figure, there is clear evidence supporting its permissibility. Harb reported that he asked Imam Ahmad about selling by specifying a figure, and Ahmad did not see any problem with it. As for selling at a price, there is a difference in narrations regarding Imam Ahmad’s opinion on this matter. In one narration from Ibn Mansur, Ahmad is reported to have said that it is not permissible for a person to take goods from someone and say, ‘I took it from you at the price you sell it for’, but our Shaykh reported the he stated its permissibility.” Bada’i` al-Fawa’id (4/103).
This was for the following reasons:
Firstly: Because it is customary for the people of the market to know the set price of each commodity. [540] Majmu` al-Fatawa by Ibn Taymiyyah (34/72).
Secondly: Because the price can be worked out. For example, if someone was to say, “I sell you this heap [541] A “subrah” is a group of heaps or piles of foodstuffs or other items, and the singular is “subar”. For example, you might say, “I bought something by the heap (subrah)” meaning: “without specifying a weight or measure”. See Al-Sihah by Jawhari (2/707). for one dirham per sa`”, the transaction would be valid, even if the total price was unknown at that moment. [542] Al-Majmu` by Nawawi (9/333).
Thirdly: by analogy to the permissibility of a “typical” mahr, wage, or price, which is a sound analogy. [543] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/373).
And fourthly: Because it is a practice of the people without any objection. [544] See I`lam al-Muqi`in by Ibn al-Qayyim (4/5).
feqhia
