Section 2: Rulings related to the commodity in a trade agreement:
Firstly: Prerequisite of the commodity
1. The commodity must be one that is permissible to benefit from according to the Shariah [545] It is not permissible to trade prohibited items such as alcohol, tobacco, prohibited video tapes, prohibited entertainment devices, and other prohibited items.
It is a prerequisite for the commodity to be one that is permissible to benefit from according to the Shariah, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [546] “Property with commercial value” according to the Hanafis refers to property that is permissible to benefit from according to the Shariah whilst in a state of affluence and choice. This is known as “legal value”. On the other hand, “property without commercial value” is that which is not permissible to benefit from out of choice, such as alcohol and pork. This type of property is not of commercial value for a Muslim. However, in the case of a non-Muslim, it is of commercial value, because they do not believe in its prohibition and can utilise it. The term “without commercial value” may also be used by the Hanafis to refer to what has not been acquired from permissible sources, such as fish from the water or birds from the air. This is known as “customary value”. Al-`Inayah by Babarti (6/405, 406) and Hashiyat Ibn `Abidin (4/501; 5/60). Malikis, [547] Al-Taj wa al-Iklil by Mawwaq (4/258, 267) and Minah al-Jalil by `Ulaysh (4/452, 453). See also Sharh Hudud Ibn `Arafah, p. 505. Shafi`is, [548] Nihayat al-Muhtaj by Ramli (3/395) and Hashiyat al-Sharwani `ala Tuhfat al-Muhtaj (4/237). and Hanbalis. [549] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/347) and Al-Insaf by Mardawi (4/195).
Proofs:
Firstly: From the Sunnah
Ibn `Abbas narrated, “The Messenger of Allah said, ‘May Allah curse the Jews (three times). Allah Exalted forbade them from consuming fats, so they sold them and consumed its price. When Allah Exalted forbids a people from consuming a thing, He also forbids them from consuming its price.’” [550] Reported by Abu Dawud (3488) and Ahmad (2221). The wording here is from Abu Dawud. Nawawi graded its chain sahih in Al-Majmu` (9/229), as did Ibn al-Qayyim in Zad al-Ma`ad (5/661), Ibn al-Muqallin in Tuhfat al-Muhtaj (2/204), and Ahmad Shakir in his commentary of Musnad Ahmad (4/49). The narration was graded sahih by Albani in Albani in Sahih Sunan Abi Dawud (3488), and Wadi`i in Al-Sahih al-Musnad (656).
- The statement of the Messenger of Allah, “When Allah Exalted forbids a people from consuming a thing, He also forbids them from consuming its price,” indicates that when Allah prohibits the consumption of something and does not permit benefitting from it, He also prohibits its price. [551] Al-Tamhid by Ibn `Abd al-Barr (9/46).
- Jabir narrated that he heard the Messenger of Allah saying during the Year of the Liberation, whilst he was in Makkah, “Indeed, Allah and His Messenger have prohibited the sale of intoxicants, carrion, pigs, and idols.” He was asked, “O Messenger of Allah, what about the fat of dead animals, for it is used to coat ships and grease skins, and people use it for lighting.” “No, it is impermissible,” he replied. Then, the Messenger of Allah said to that, “May Allah condemn the Jews! When Allah forbade the fat of such animals, they melted it. Then, they sold it and consumed its price.” [552] Reported by Bukhari (2236) and Muslim (1581). The wording here is from Bukhari.
- The statement of the Messenger of Allah, “it is impermissible,” refers to its sale. [553] Sharh Muslim by Nawawi (11/6) and Fath al-Bari by Ibn Hajar (4/425). See also Zad al-Ma`ad by Ibn al-Qayyim (5/664).
2. The commodity must be available at the time of contract
It is a prerequisite for the commodity to be available at the time of contract, [554] The intended meaning here is things that are absent or non-existent at the time of the contract; for example, if someone sells the fruits of a tree for two, three, or four years ahead. This does not include the salam trade, which involves an absent commodity that is described in the contract and will be delivered at a later date. Ibn al-Qayyim said: “The ‘absent’ is of three types: Firstly, absent and specified in the contract, such as selling fruits that will ripen in two, three, or four years. In this case, it is permissible to sell it by mutual agreement. However, according to the school of thought of Abu Hanifah, it is a condition that it be in existence in its entirety at the time of the contract, and this is known as the salam trade. Secondly, absent and subsidiary to the existing, and it can be either agreed upon or disagreed upon. An example of the agreed upon type is the sale of fruits after the suitability of one of them has appeared, even if the rest of the fruits are absent at the time of the contract. The disagreed upon type includes items like selling the mat and cushion if they become pleasing. There are two opinions regarding this: one allows selling them collectively, and the buyer takes them gradually as they become available, following the customary practice. Thirdly, absent with uncertainty about its occurrence or non-occurrence, and the buyer assumes the risk. The Shariah prohibits the sale of such items not because they are absent but due to the uncertainty, because it resembles gambling and introduces unnecessary risk into the contract, not based on a genuine need. Examples include selling something that the seller does not own and has no ability to deliver or selling the foetus of a pregnant animal.” Zad al-Ma`ad (5/716). However, Ibn Taymiyyah and Ibn al-Qayyim stated the permissibility of selling some of the absent. They argued that the prohibition on selling certain types of absent items is not due to their absence but rather because of the presence of uncertainty or ambiguity. Ibn Taymiyyah said: “There is neither in the Book of Allah nor in the Sunnah of His Messenger, nor is there reported from any of the Companions an explicit statement, whether in general terms or general meaning, that the sale of the absent is impermissible. Instead, what is found in the Sunnah is a prohibition on the sale of certain things that are absent, just as there is a prohibition on selling certain things that are present. The reason for the prohibition is not the presence or absence of the item but rather the established prohibition in the authentic hadith of the Prophet against trades involving ‘uncertainty’ or ‘risk’ (gharar). ‘Uncertainty’ or ‘risk’ refers to commodities that cannot be delivered, regardless of whether they are present or absent.” Majmu` al-Fatawa (20/542). Ibn al-Qayyim said: “There is no explicit statement in the Book of Allah, the Sunnah of His Messenger g, or the sayings of any of the Companions indicating that the sale of the absent is impermissible, whether in general terms of general meaning. Instead, what is found in the Sunnah is a prohibition on the sale of certain things that are absent, just as there is a prohibition on selling certain things that are present. The reason for the prohibition is not based on the presence or absence of the item, but rather the prohibition related in the Sunnah against trades involving ‘uncertainty’ or ‘risk’ (gharar), which refers to commodities that cannot be delivered, regardless of whether present or absent.” I`lam al-Muqi`in by Ibn al-Qayyim (2/7). and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [555] Al-Bahr al-Ra’iq by Ibn Nujaym (5/279) and Hashiyat Ibn `Abidin (4/505). Malikis, [556] According to them, it is not permissible to trade unknown commodities, and non-existent commodities are even more unknown, so it is even more appropriate for them to not be allowed. Tahdhib al-Furuq by Muhammad ibn Husayn, printed alongside Al-Furuq by Qarafi (3/296); Al-Risalah by Ibn Abi Zayd al-Qayrawani, p. 104; Hashiyat al-`Adawi `ala Kifayat al-Talib al-Rabbani (2/150); Al-Dhakhirah by Qarafi (5/257). The Malikis also prohibit the trade of impure items and draw an analogy between it and the trade of the absent. They assert that things that are legally absent are like those that are tangibly absent. See Mawahib al-Jalil by Hattab (6/59) and Minah al-Jalil by `Ulaysh (4/454). Shafi`is, [557] Al-Majmu` by Nawawi (9/258). and Hanbalis, [558] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/361), Kashshaf al-Qina` by Bahuti (3/162), and Matalib ‘Uli al-Nuha by Rahibani (3/200). See also Al-Kafi by Ibn Qudamah (2/7). and a consensus on this issue was reported. [559] Al-Majmu` by Nawawi (9/258) and Rawdat al-Talibin by Nawawi (3/399).
Proofs:
Firstly: From the Sunnah
Abu Hurayrah narrated, “The Messenger of Allah forbade transaction by stone throwing and transactions involving uncertainty (gharar).” [560] Reported by Muslim (1513).
The sale of something that is absent is considered an uncertain transaction because its consequences are unknown, and it therefore falls under the prohibition mentioned in the narration above. [561] Al-Kafi by Ibn Qudamah (2/8). See also Al-Muhadhdhab by al-Shirazi (2/12).
Jabir narrated, “The Messenger of Allah forbade muhaqalah, muzabanah, mu`awamah, mukhabarah (one of the narrators said, ‘Mu`awamah is the sale of years of fruit harvest’), and thunya, and he made an allowance for `araya.” [562] Reported by Muslim (1536).
The prohibition on selling “years” [563] The sale of “years” or the sale of “usufruct” refers to selling the fruits of a tree for two, three, or more years ahead. See Ma`alim al-Sunan by Khattabi (3/97) and Sharh Sahih Muslim by Nawawi (10/193). refers to selling something that is absent at the time of the contract, because it is the sale of a commodity that is neither present nor existent at the time of the agreement. It is uncertain whether the item will be brought into existence and whether the transaction will be completed or not, and this type of transaction therefore falls under the prohibition mentioned above. [564] Ma`alim al-Sunan by Khattabi (3/86) and Sharh Sahih Muslim by Nawawi (10/193).
Secondly: Selling the non-existent is more explicit in its uncertainty than selling the unknown that exists. This is because the unknown that exists is established in some respects, whereas the non-existent is totally negated. Selling the unknown that exists is categorically invalid, so selling the non-existent has even more right to be considered invalid. [565] Tahdhib al-Furuq by Muhammad ibn `Ali al-Maliki, with Al-Furuq by Qarafi (3/296).
3. The commodity must be pure
It is a prerequisite of the validity of a trade for the item being sold to be pure, and it is not permitted to trade in impure items [566] Such as pork or carrion. Some scholars granted allowances for trading impure substances when there is a need, such as selling waste or refuse for fertilising crops and plants or the skin of a dead animal if it has been purified by tanning. See Al-Durr al-Mukhtar li al-Haskafi wa Hashiyat Ibn `Abidin (5/58). Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/10), Al-Muhalla bi al-Athar by Ibn Hazm (7/524), and Al-Sharh al-Mumti` by Ibn `Uthaymin (8/114). or things that are impossible to cleanse of impurity, [567] Such as oil that is mixed with impure substances. and this is the position of the majority: the Malikis, [568] Al-Taj wa al-Iklil by Mawwaq (4/258) and Minah al-Jalil by `Ulaysh (4/452). Shafi`is, [569] Al-Majmu` by Nawawi (9/149); Minhaj al-Talibin by Nawawi, p. 94; and Hashiyata Qalyubi wa `Umayrah (2/197). and the most well-known position of the Hanbalis. [570] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/352) and Kashshaf al-Qina` by Bahuti (3/156).
Proofs:
Firstly: From the Quran
“Forbidden to you are carrion…” [571] al-Ma’idah, 3.
Allah Exalted forbade the consumption of carrion, which is impure. When Allah forbids something whose main benefit is its consumption, then its price is also forbidden. [572] Al-Muntaqa Sharh al-Muwatta’ by Baji (7/246).
Secondly: From the Sunnah
Jabir narrated that he heard the Messenger of Allah saying during the Year of the Liberation, whilst he was in Makkah, “Indeed, Allah and His Messenger have prohibited the sale of intoxicants, carrion, pigs, and idols.” He was asked, “O Messenger of Allah, what about the fat of dead animals, for it is used to coat ships and grease skins, and people use it for lighting.” “No, it is impermissible,” he replied. Then, the Messenger of Allah said to that, “May Allah condemn the Jews! When Allah forbade the fat of such animals, they melted it. Then, they sold it and consumed its price.” [573] Reported by Bukhari (2236) and Muslim (1581). The wording here is from Bukhari.
The statement of the Messenger of Allah, “Indeed, Allah and His Messenger have prohibited the sale of intoxicants, carrion, pigs, and idols,” is an explicit prohibition of selling intoxicants, carrion, pigs, and idols. This is because they are impure, and this prohibition extends to all things that are impure. [574] Fath al-Bari by Ibn Hajar (4/425).
Abu Mas`ud al-Ansari narrated that the Messenger of Allah forbade the price of a dog, the income of a prostitute, and the earnings of a fortune-teller. [575] Reported by Bukhari (2237) and Muslim (1567).
The Prophet prohibited selling dogs, and the reason for its prohibition is their impurity. [576] Fath al-Bari by Ibn Hajar (4/426).
4. The commodity must be deliverable [577] Selling commodities that are not deliverable includes birds in the air, fish in the water, a stray camel, a lost car, and stolen goods. It is a prerequisite of the validity of a trade for the item being sold to be deliverable. [578] See the section on the ability to deliver the commodity.
5. The commodity must be owned by the seller, or they must have permission to sell it
It is a prerequisite of the validity of a trade for the commodity to be either owned by the seller or an item they have permission to sell. [579] This refers to selling a specific commodity rather than selling by description, for we know that the salam trade is permissible. See Ma`alim al-Sunan by Khattabi (3/140).
Proofs:
Firstly: From the Sunnah
Hakim ibn Hizam narrated, “I said, ‘O Messenger of Allah, a man comes to me asking for me to sell him something I do not have. In that case, should I sell it to him from the market?’ ‘Do not sell what you do not have,’ he replied.” [580] Reported by Abu Dawud (3503), Tirmidhi (1232), Nasa’i (4613), Ibn Majah (2187), and Ahmad (15311). The wording here is from Ahmad. Graded sahih by Ibn al-`Arabi in `Aridat al-Ahwadhi (3/193), Nawawi in Al-Majmu` (9/259), Ibn Daqiq in Al-Iqtirah (99), Ibn al-Muqallin in Al-Badr al-Munir (6/448), Ibn Baz in Majmu` al-Fatawa (19/119), and Albani in Sahih Sunan Ibn Majah (2187). Ibn al-Qayyim in Zad al-Ma`ad (5/716) and Ibn Hajar in Tahdhib al-Tahdhib (11/424) said: “Memorized (mahfuz).”
`Amr ibn Shu`ayb narrated from his father, from `Abdullah ibn `Amr, “The Messenger of Allah forbade selling on the condition of a loan, having two conditions within one transaction, selling what you do not have, and profiting from what you do not possess.” [581] Reported by Abu Dawud (3504), Tirmidhi (1234), Nasa’i (4631), Ibn Majah (2188), and Ahmad (6918). The wording here is from Nasa’i. Tirmidhi said: “Hasan sahih.” Graded sahih by Ibn Hazm in Al-Muhalla bi al-Athar (8/520), Ibn al-Qattan in Al-Wahm wa al-Iham (5/487), and Ibn Taymiyyah in Majmu` al-Fatawa (30/84). Albani said in Sahih Sunan al-Nasa’i (4631): “Hasan sahih.”
The Prophet forbade selling something one does not have, and whoever sells something they do not have is selling something they do not own. [582] Al-Muntaqa Sharh al-Muwatta’ by Baji (5/77), Al-Kawthar al-Jari ila Riyad Ahadith al-Bukhari by Ahmad ibn Isma`il al-Kurani (4/419), and Nayl al-Awtar by Shawkani (5/184).
`Amr ibn Shu`ayb narrated from his father, from his grandfather, that the Prophet said, “There is no divorce except what you possess, no manumission except what you possess, and no sale except what you possess.” [583] Reported by Abu Dawud (2190), Tirmidhi (1181), Ahmad (6769) with some minor differences, Nasa’i (4612), and Ibn Majah (2047) in abbreviated form. The wording here is from Abu Dawud. Bukhari said, as found in Al-Badr al-Munir by Ibn al-Muqallin (8/94): “The soundest narration about divorce before marriage.” Tirmidhi said: “Hasan sahih.” Graded hasan by Khattabi in Ma`alim al-Sunan (3/207), Nawawi in Al-Majmu` (9/262), and Albani in Sahih Sunan Abi Dawud (2190). Its chain was graded sahih by Ibn al-Muqallin in Tuhfat al-Muhtaj (2/206) and Ahmad Shakir in his commentary of Musnad Ahmad (11/43).
Secondly: From the scholarly consensus
A consensus on this issue was related from al-Khattabi, [584] Khattabi said: “I do not know of any difference of opinion that if someone sells a commodity that he does not own and then acquires ownership of it, then the trade is not valid.” Ma`alim al-Sunan (3/241). Ibn Hazm, [585] Ibn Hazm said: “They unanimously agreed that the sale of what one does not own and is not authorised by its owner [to trade], and where the seller is not the ruler nor seeking his due right, and where [a slave] is exercising his own personal discretion in using wealth without consulting his master in it—such a sale is invalid.” Maratib al-Ijma`, p. 84. Ibn Qudamah, [586] Ibn Qudamah said: “It is not permissible for someone to sell an item he does not own with the intention of acquiring it later and then delivering it. This is according to a single narration and is the opinion of Shafi’i, and we are not aware of any dissenting views on the matter."” Al-Mughni (4/155). and Ibn Taymiyyah. [587] Ibn Taymiyyah said: “As for selling the share of others, it is not valid except through authorisation or delegation. If the rightful owner does not approve it, the sale becomes invalid by agreement of the scholars.” Majmu` al-Fatawa (29/235).
- Selling on behalf of the owner
1- Selling through an agent is permissible.
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “So send one of you with these silver coins of yours to the city, and let him find which food is the purest, and then bring you provisions from it.” [588] al-Kahf, 19. This verse indicates that it is permissible to appoint an agent to buy and sell on one’s behalf. [589] Ahkam al-Qur’an by Ibn al-Faras (3/268) and Tafsir al-Sa`di, p. 473.
The general proofs for trade, like the Statement of Allah, “Allah has permitted trading,” [590] al-Baqarah, 275. the Statement of Allah, Glorified is His Majesty, “O believers! Do not devour one another’s wealth illegally, but rather trade by mutual consent,” [591] al-Nisa’, 29. and the Statement of Allah, “Once the prayer is over, disperse throughout the land and seek the bounty of Allah.” [592] al-Jumu`ah, 10.
Allah has legislated buying and selling without making a distinction between whether the possession is obtained directly from the owner, through a pre-authorised agent, or with the authorisation of the owner at the end. There is also no distinction between consent being obtained at the time of contract or afterwards. Therefore, this general framework should be followed except in cases where there is specific evidence indicating otherwise. [593] Bada’i` al-Sana’i` by Kasani (5/148-149).
Secondly: From the Sunnah
`Urwah al-Bariqi narrated that the Prophet gave him a dinar to buy a lamb with. He bought two lambs with it, sold one for a dinar, and then came to him with a lamb and a dinar. The Prophet supplicated for `Urwah to be blessed in his trade and after that, even if he bought dust, he profited from it.” [594] Reported by Bukhari (3642).
Thirdly: From the scholarly consensus:
A consensus on this issue was related by Ibn al-Mundhir, [595] Ibn al-Mundhir said: “They unanimously agreed that if a man delegates someone to sell his slave, and that person sells the slave on behalf of the owner’s son, father, mother, sister, wife, paternal aunt, or maternal aunt, then the sale is permissible.” Al-Ijma`, p. 140. Ibn Hazm, [596] Ibn Hazm said: “They unanimously agreed on the permissibility of appointing an agent for buying and selling, safeguarding property, collecting and disbursing financial rights, and overseeing financial matters.” Maratib al-Ijma`, p. 61. Ibn Qudamah, [597] Ibn Qudamah said: “We do not know of any difference of opinion regarding the permissibility of appointing an agent for buying and selling.” Al-Mughni (5/64). and Ibn Taymiyyah. [598] Ibn Taymiyyah said: “As for selling the share of others, it is not valid except through authorisation or delegation. If the rightful owner does not approve it, the sale becomes invalid by agreement of the scholars.” Majmu` al-Fatawa (29/235).
Fourthly: Because necessity calls for delegation in trade, for example for someone who is not good at trading or unable to go to the market. [599] Al-Mughni by Ibn Qudamah (5/64).
The buying and selling of an unauthorised agent [600] An “unauthorised agent” is someone who is neither a guardian, principal, or [authorised] agent in a contract. Al-Ta`rifat by al-Jurjani, p. 167; Al-`Inayah by Babarti (7/51); Al-Binayah Sharh Al-Hidayah by `Ayni (8/311); and Al-Bahr al-Ra’iq by Ibn Nujaym (6/160).
Purchases and sales of an unauthorised agent are to be concluded, but they are subject to the owner’s approval. This was the position of the Hanafis [601] The Hanafis stipulate two conditions for the permissibility of the unauthorised agent’s contract: Firstly, the contract must have an approver at the time of its occurrence. If there is no approver at the time of the contract, it does not come into effect. Secondly, the contracting parties, the owner, and the contracted item must be existent. If one of the contracting parties dies before approval, the contract is not validated. This is because the presence of both parties is essential for the contract to be valid. For example, the presence of the buyer is necessary for the obligation of the price, and after death, he is no longer bound unless there was an obligation during his lifetime. Similarly, the presence of the seller is necessary for the rights of the contract, and he is not bound after death, for the rights are only binding while he is alive. The presence of the owner is required because approval can only come from him, not his heirs. The presence of the contracted item is necessary because ownership only transfers after approval, and it cannot be transferred after being destroyed. Al-Binayah Sharh Al-Hidayah by `Ayni (8/311) and Al-Bahr al-Ra’iq by Ibn Nujaym (6/160). and Malikis [602] The Malikis stipulate that in a unauthorised agent’s contract the approver must be absent, in a distant location and not able to be informed at the time of the contract. If the approver is present and remains silent during the contract, then the contract becomes binding on him. Similarly, if the approver is absent but is close to the location of the contract, meaning that it is possible for him to be informed, then the contract is binding on both the approver and the buyer, but not the owner. Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/12) and Minah al-Jalil by `Ulaysh (4/458, 459). , the earlier view of Shafi`i, [603] Al-Majmu` by Nawawi (9/259), Rawdat al-Talibin by Nawawi (3/355), and Al-Ghurar al-Bahiyyah by Zakariyya al-Ansari (2/406). a statement related from Ahmad, [604] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/16) and Al-Insaf by Mardawi (4/205). and the preferred opinion of Ibn Taymiyyah, [605] Ibn Taymiyyah said: “If someone acts without authority, he is considered an unauthorised agent, and any contracts are suspended. This is one of the two statements related from Ahmad ibn Hanbal and the view of most scholars, and it is the position mentioned by al-Khiraqi in his Mukhtasar. According to this view, the selling and buying of an unauthorised agent are not invalid but rather suspended. If he sells or buys with actual wealth, the transaction is suspended, and the same applies if he buys with a deferred payment. Any rental or purchase is his; otherwise, they obligate the buyer. The opinion of al-Qadi and his followers, however, is that his transaction is annulled except when he buys under guarantee, and what al-Khiraqi mentioned is more correct.” Al-Mustadrak `ala Majmu` al-Fatawa (2/160). See also Majmu` al-Fatawa by Ibn Taymiyyah (29/249, 268). Ibn al-Qayyim, [606] Ibn al-Qayyim said: “The opinion of suspending contracts is generally deemed to have stronger proofs and is the view of the majority, and there is fundamentally no harm in this approach; rather, it is a form of rectification without causing corruption. A person may choose to buy or sell on behalf of another or lease to or from another, and then consult the concerned party. If the party agrees, the transaction proceeds, and if not,, the person initiating the transaction does not incur any harm.” I`lam al-Muqi`in (3/254). and Ibn `Uthaymin. [607] Ibn `Uthaymin said: “The correct opinion is that if the owner gives permission, the trade is valid. The evidence for this is that the Prophet delegated `Urwah ibn al-Ja`d to buy a sacrificial animal for him and gave him a dinar. `Urwah bought two sacrificial animals for one dinar [combined], and then sold one of them for one dinar [on its own]. He was delegated again to buy another sacrificial animal, and he bought two again. This arrangement proved beneficial, and `Urwah returned to the Prophet with his dinar and a sheep. The Prophet said: ‘O Allah, bless his transaction.’ [After that,] `Urwah engaged in trade, and after that, everything he traded in brought profit with the blessings of the supplication of the Prophet. According to the author’s words, this transaction would be considered incorrect, but the correct view is that it is permissible and valid if the owner gives permission.” Al-Sharh al-Mumti` (8/131, 132).
Proofs:
The general proofs for trade, like the Statement of Allah, “Allah has permitted trading,” [608] al-Baqarah, 275. the Statement of Allah, Glorified is His Majesty, “O believers! Do not devour one another’s wealth illegally, but rather trade by mutual consent,” [609] al-Nisa’, 29. and the Statement of Allah, “Once the prayer is over, disperse throughout the land and seek the bounty of Allah.” [610] al-Jumu`ah, 10.
Allah has legislated buying and selling without making a distinction between whether the possession is obtained directly from the owner, through a pre-authorised agent, or with the authorisation of the owner at the end. There is also no distinction between consent being obtained at the time of contract or afterwards. Therefore, this general framework should be followed except in cases where there is specific evidence indicating otherwise. [611] Bada’i` al-Sana’i` by Kasani (5/148-149).
Secondly: From the Sunnah
`Urwah al-Bariqi narrated that the Prophet gave him a dinar to buy a lamb with. He bought two lambs with it, sold one for a dinar, and then came to him with a lamb and a dinar. The Prophet supplicated for `Urwah to be blessed in his trade and after that, even if he bought dust he profited from it.” [612] Reported by Bukhari (3642).
The Companion was not instructed to sell the sheep, so if his transaction was not valid, the Messenger of Allah would not have sold the sheep or supplicated for blessings and goodness on his behalf. Instead, he would have repudiated the action, for wrongful actions are to be repudiated. [613] Bada’i` al-Sana’i` by Kasani (5/149).
Thirdly: Because it is an act of ownership transfer. The individual who executed the transaction was an adult of sound mind and the property in question was of commercial value. Therefore, it is necessary to say that it will be concluded. [614] Al-Bahr al-Ra’iq by Ibn Nujaym (6/160).
Fourthly: Because there is no harm in it, and he made the choice willingly. Rather, there is a benefit in the transaction as it fulfills the needs of the buyer. The rights of the contract are not contingent on the owner of the item being sold. [615] Al-Bahr al-Ra’iq by Ibn Nujaym (6/160).
Fifthly: Because benefits the contracting party by preserving his words from cancellation, and it benefits the buyer as he engaged in the transaction willingly. Were it not for this benefit, he would not have done so, and legal capacity is proven beyond doubt due to these considerations. [616] Al-Bahr al-Ra’iq by Ibn Nujaym (6/160).
Sixthly: Permission is a clear indication, for sane individuals grant permission for beneficial transactions. [617] Al-Bahr al-Ra’iq by Ibn Nujaym (6/160).
Seventhly: Because it is a valid contract which is permissible in its occurrence, and it is based on the owner’s authorization, as is the case with bequeathing more than one-third to a non-relative. [618] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/16).
Trading on someone’s behalf by legal guardianship (such as the guardianship of a father, guardian, or judge)
Prerequisites of guardianship:
The First prerequisite: The guardian is a Muslim.
Proofs:
Firstly: From the Quran
“And Allah will never grant the disbelievers a way over the believers.” [619] al-Nisa’, 141.
Here, Allah Exalted decisively prohibits the guardianship of a non-Muslim over a Muslim with a permanent prohibition. [620] Bada’i` al-Sana’i` by Kasani (2/239).
Secondly: From the scholarly consensus
A consensus on this issue was related from Ibn Qudamah. [621] Ibn Qudamah said: “To appoint a sane, adult, Muslim, free, and just man as a guardian is valid by consensus. However, it is not valid to appoint a mentally unstable person or a child, and neither can a non-Muslim serve as the guardian of a Muslim, and we do not know of any difference of opinion regarding this matter.” Al-Mughni (6/244).
Thirdly: Because disbelief cuts off compassion for the Muslim, and there is no benefit in entrusting matters to such a person. [622] Tabyin al-Haqa’iq by Zayla`i (14/277).
Fourthly: Because affirming guardianship for the disbeliever over the Muslim signifies the subservience of the Muslim to the disbeliever, and this is not permissible. [623] Bada’i` al-Sana’i` by Kasani (2/239).
The second prerequisite: The guardian is sane.
Proofs:
Firstly: From the scholarly consensus
A consensus on this issue was related from Ibn Qudamah. [624] Ibn Qudamah said: “To appoint a sane, adult, Muslim, free, and just man as a guardian is valid by consensus. However, it is not valid to appoint a mentally unstable person… and we do not know of any difference of opinion regarding this matter.” Al-Mughni (6/244).
Secondly: A person who is not sane requires a guardian themselves, so they cannot act as a guardian for somebody else. [625] Kashshaf al-Qina` by Bahuti (3/446).
The third prerequisite: The guardian reached puberty.
Proofs:
Firstly: From the scholarly consensus:
A consensus on this issue was related from Ibn Qudamah. [626] Ibn Qudamah said: “To appoint a sane, adult, Muslim, free, and just man as a guardian is valid by consensus. However, it is not valid to appoint a mentally unstable person or a child, and we do not know of any difference of opinion regarding this matter.” Al-Mughni (6/244).
Secondly: Because a person who has not reached puberty does not have guardianship over their own affairs, let alone someone else’s. [627] Al-Bahr al-Ra’iq by Ibn Nujaym (3/132) and Kashshaf al-Qina` by Bahuti (3/446).
The guardian’s disposing of the wealth that has been entrusted to them:
It is not permissible for the guardian to act in a way that brings clear harm to their charge’s wealth, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [628] Al-Mabsut by Sarakhsi (12/182; 5/153). See also Bada’i` al-Sana’i` by Kasani (5/153). Malikis, [629] Al-Taj wa al-Iklil by Mawwaq (5/354) and Minah al-Jalil by `Ulaysh (7/314). Shafi`is, [630] Mughni al-Muhtaj by Shirbini (2/174) and Hashiyata Qalyubi wa `Umayrah (2/380). and Hanbalis. [631] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/217) and Kashshaf al-Qina` by Bahuti (3/477).
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “And do not come near the wealth of the orphan, unless intending to enhance it.” [632] al-An`am, 152.
And the Statement of Allah Exalted, “And if you partner with them, they are bonded with you in faith. [633] lit., “they are your brothers”. And Allah knows who intends harm and who intends good.” [634] al-Baqarah, 220.
Secondly: From the Sunnah
`Ubadah ibn al-Samit narrated, “The Messenger of Allah ruled that there should be neither harming nor reciprocating harm.” [635] Reported by Ibn Majah (2340) and by `Abdullah ibn Ahmad in Zawa’id al-Musnad (22778). Graded hasan by Nawawi in Al-Adhkar (502). The narration was graded sahih by Ibn Rajab in Jami` al-`Ulum wa al-Hikam (2/211). Ibn Hajar said in Al-Dirayah (2/282): “There is disconnection in the chain.” Shawkani said in Al-Darari al-Mudiyyah (285): “It is well-known (mashhur).” The narration was also graded sahih by Albani in Sahih Sunan Ibn Majah (2340). The narration was transmitted from several chains, being related from `Abdullah ibn `Abbas, Abu Sa`id al-Khudri, Abu Hurayrah, Jabir ibn `Abdillah, `A’ishah bint Abi Bakr al-Siddiq, Tha`labah ibn Abi Malik al-Qurazi, and Abu Lubabah.
This narration explicitly prohibits causing harm, and this includes harm in the guardian’s dealings with their charge’s wealth.Top of Form [636] See Mashariq al-Anwar `ala Sihah al-Athar (2/57), Al-Nihayah fi Gharib al-Hadith wa al-Athar (3/81-82), Al-Ashbah wa al-Naza’ir by Kasani (1/41), and Al-Ashbah wa al-Naza’ir by Ibn Nujaym, p. 72.
Thirdly: Because the guardian’s harmful actions could lead to their charge losing all or part of a possession of theirs without recompense. [637] Bada’i` al-Sana’i` by Kasani (5/153).
The order of guardianship:
The father is the first to assume guardianship of a person who is legally incompetent, [638] The scholars differed as to who assumes guardianship after the father. According to the Hanafis, after the father is his executor of will, then his executor’s executor of will, then the father’s father (i.e., the grandfather), then the grandfather’s executor of will, then the grandfather’s executor’s executor of will, then the judge. According to the Malikis, after the father is his executor of will, then the ruler. According to the Shafi`is, after the father is the grandfather, then both their executors of will, then the judge. And according to the Hanbalis, after the father is his executor of will, then the ruler, and there is no guardianship for the grandfather or any other category when it comes to financial affairs. and that is agreed upon by the four jurisprudential schools of thought: the Hanafis, [639] Al-Bahr al-Ra’iq by Ibn Nujaym (5/281). See also Bada’i` al-Sana’i` by Kasani (5/155). Malikis, [640] Mukhtasar Khalil, p. 172, and Mawahib al-Jalil by Hattab (6/652). Shafi`is, [641] Minhaj al-Talibin by Nawawi, p. 125, and Mughni al-Muhtaj by Shirbini (2/173). and Hanbalis. [642] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/216, 217) and Al-Insaf by Mardawi (5/238). This is because guardianship over those incapable of managing their affairs is based on taking this inability into consideration, which is built on abundant compassion, and the compassion of the father takes supersedes the compassion of others. [643] Bada’i` al-Sana’i` by Kasani (5/155).
6. The commodity must be known
It is a prerequisite for the commodity to be known to both parties to the contract. It is a prerequisite for the validity of a trade for the item being traded to be known to both parties (i.e., the seller and buyer).
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “Do not devour one another’s wealth illegally, but rather trade by mutual consent.” [644] al-Nisa’, 29.
The verse prohibits consuming people’s wealth unjustly, which includes cases where the commodity is unknown. Also, the Statement of Allah Exalted, “by mutual consent”, indicates that consent is a prerequisite. Ignorance contradicts consent, for one of the parties to the contract may not consent to the commodity once they learn what it is. [645] See Ahkam al-Qur’an by Ibn al-`Arabi (1/521).
Secondly: From the Sunnah
Abu Hurayrah narrated that the Messenger of Allah forbade transaction by stone throwing and transactions involving uncertainty. [646] Reported by Muslim (1513). The Prophet forbade uncertain transactions. Selling something that has not been identified is uncertain, because its type and nature are unknown. [647] Al-Muhalla bi al-Athar by Ibn Hazm (7/490) and Al-Muhadhdhab fi Fiqh al-Imam al-Shafi`i by Shirazi (2/14).
Thirdly: From the scholarly consensus
A consensus on this issue was related from Shafi`i, [648] Shafi`i said: “According to the Sunnah and the scholarly consensus, is not permissible for the commodity to be unknown to one of the parties. If it is not permissible for one of the transacting parties to not know it, then it is not permissible for both of them to not know it together.” Al-Umm (3/102). Ibn al-`Arabi, [649] Ibn al-`Arabi said: “The Muslim community agrees that a trade is not permissible unless it is based on a known commodity exchanged for a known price, [learnt] through any recognised means of knowledge. What scholars have differed on are the ways in which knowledge is attained.” Al-Masalik fi Sharh Muwatta’ Malik (6/30). Shams al-Din ibn Qudamah, [650] Shams al-Din Ibn Qudamah said: “The unknown trade is invalid by consensus.” Al-Sharh al-Kabir `ala Matn al-Muqni` (6/5). and `Ayni. [651] `Ayni said: “There is no difference of opinion regarding the fact that the lack of knowledge about the commodity renders the trade impermissible.” Al-Binayah Sharh Al-Hidayah (8/151).
Fourthly: Because not knowing the commodity prevents its delivery and acceptance, leading to disputes between the two parties to the trade. The contract becomes ineffectual, and any contract that leads to conflict is defective. [652] Durar al-Hukkam by `Ali Haydar (1/178).
- Seeing the commodity
The present and visible commodity
It is permissible to sell something that is present and visible.
Firstly: From the Sunnah
Abu Hurayrah narrated that the Messenger of Allah forbade transaction by stone throwing and transactions involving uncertainty. [653] Reported by Muslim (1513).
If the commodity is present and visible when the trade is being made, then it is free of the uncertainty that the Prophet forbade in the narration above. [654] Al-Tamhid by Ibn `Abd al-Barr (12/136).
Hakim ibn Hizam narrated, “I said, ‘O Messenger of Allah, a man comes to me asking for me to sell him something I do not have. In that case, should I sell it to him from the market?’ ‘Do not sell what you do not have,’ he replied.” [655] Reported by Abu Dawud (3503), Tirmidhi (1232), Nasa’i (4613), Ibn Majah (2187), and Ahmad (15311). The wording here is from Ahmad. Graded sahih by Ibn al-`Arabi in `Aridat al-Ahwadhi (3/193), Nawawi in Al-Majmu` (9/259), Ibn Daqiq in Al-Iqtirah (99), Ibn al-Muqallin in Al-Badr al-Munir (6/448), Ibn Baz in Majmu` al-Fatawa (19/119), and Albani in Sahih Sunan Ibn Majah (2187). Ibn al-Qayyim in Zad al-Ma`ad (5/716) and Ibn Hajar in Tahdhib al-Tahdhib (11/424) said: “Memorized (mahfuz).”
An item that the seller does not have with them is not visible to the buyer or seller and therefore falls under the prohibition above. [656] Al-Hawi al-Kabir by Mawardi (5/325).
Secondly: From the scholarly consensus
A consensus on this issue was related from Ibn Hazm, [657] Ibn Hazm said: “The trade of a present, tangible item for its equivalent or for dinars or dirhams, whether they are tangible and exchanged immediately, or for a specified term, or as a debt, is unanimously agreed upon as permissible.” Al-Muhalla bi al-Athar (7/214). Ibn `Abd al-Barr, [658] Ibn `Abd al-Barr said: “Malik stated: ‘As for everything that is present and can be bought in its usual state, such as milk when it is milked or fresh dates when they are picked, and the buyer takes possession of them on a daily basis, there is no harm in that.’ Abu Umar said: ‘There is no difference of opinion about this when the commodity is purchased in its usual state after being inspected, such as buying milk after it has been milked or dates after they have been picked.” Al-Istidhkar (6/337). and Ibn Rushd. [659] Ibn Rushd said: “Commodities are of two types, [the first of which is] present and visible commodities, and there is no difference of opinion regarding trading these.” Bidayat al-Mujtahid (3/174).
- Seeing the commodity before the transaction
It is permissible to view the commodity before the transaction if it is something that generally does not change, [660] Such as land, iron, copper, utensils, and other similar items. and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [661] Al-Fatawa al-Hindiyyah (6/281). Malikis, [662] Mukhtasar Khalil, p. 145, and Minah al-Jalil by `Ulaysh (4/486). preponderant view of the Shafi`is, [663] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/264) and Nihayat al-Muhtaj by Ramli (3/417). and Hanbalis. [664] Al-Insaf by Mardawi (4/213) and Kashshaf al-Qina` by Bahuti (3/164).
This is for the following reasons:
(1) Because the prerequisite for the validity of a trade is knowledge of the commodity, and this is fulfilled by viewing the commodity before the transaction. [665] Kashshaf al-Qina` by Bahuti (3/164).
(2) Because it is established that a blind person can purchase an item so long as they know what the item is and there is no objection to this practice, and viewing the commodity before the transaction follows the same concept. [666] See Al-`Inayah by Babarti (6/348).
- Ways of identifying the commodity [667] The intended meaning of “identifying” the commodity is to define it. For example, for someone to say to the buyer, “I sell you this car”, or identify the commodity through description and details, especially if it is physically absent.
Signaling: Signaling is one way of identifying a commodity, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [668] Al-Hidayah by Marghinani (3/24) and Al-`Inayah by Babarti (6/259, 260). Malikis, [669] Hashiyat al-`Adawi `ala Kifayat al-Talib al-Rabbani (2/194). Shafi`is, [670] Fath al-`Aziz by Rafi`i (8/432) and Al-Majmu` by Nawawi (9/310). and Hanbalis. [671] Al-Iqna` by Hajawi (2/69) and Kashshaf al-Qina` by Bahuti (3/171). This is because signaling is enough to identify the commodity, and it eliminates the ambiguity that can lead to disputes. [672] See Al-Hidayah by Marghinani (3/24) and Al-`Inayah by Babarti (6/259).
Describing: Describing is a way of identifying a commodity if it is absent. [673] See the section on trading absent commodities with a description to remove ambiguity.
Specifying the quantity: Specifying the quantity is a way of identifying the commodity, [674] The intended meaning is clarifying its quantity through weight, measure, or number. and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [675] Tabyin al-Haqa’iq by Zayla`i (4/4, 5) and Al-`Inayah by Babarti (6/303). Malikis, [676] Al-Taj wa al-Iklil by Mawwaq (4/278) and Minah al-Jalil by `Ulaysh (4/465, 466). Shafi`is, [677] Rawdat al-Talibin by Nawawi, p. 103, and Mughni al-Muhtaj by Shirbini (2/73). and Hanbalis. [678] Al-Furu` by Ibn Muflih (6/158) and Kashshaf al-Qina` by Bahuti (3/176). This is because not knowing the quantity of the commodity can lead to disputes that hinder delivery and acceptance. [679] Tabyin al-Haqa’iq by Zayla`i (4/4, 5) and Al-Majmu` by Nawawi (9/314).
The buying and selling of a blind person: The buying and selling of a blind person are sound, and this was the position of the majority: the Hanafis, [680] According to them, they are valid in general, with or without a description [of the commodity]. Al-`Inayah by Babarti (6/348) and Al-Fatawa al-Hindiyyah (3/65). Malikis, [681] [According to the Malikis, they are] valid by description or similar. Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/731), Al-Taj wa al-Iklil by Mawwaq (4/294), and Minah al-Jalil by `Ulaysh (4/486). and Hanbalis, [682] According to the Hanbalis, the trading of a blind person is valid for things they can perceive without their sight but can perceive through their senses of smell, touch, and taste. Al-Furu` by Ibn Muflih (6/144) and Kashshaf al-Qina` by Bahuti (3/165). and an opinion of the Shafi`is. [683] Rawdat al-Talibin by Nawawi (3/370, 371) and Al-Majmu` by Nawawi (9/302, 303).
This is for the following reasons:
(1) Throughout history, from the time of the Messenger of Allah until today, blind people have never been prevented from buying and selling. Rather, they have engaged in trade without objection. [684] Bada’i` al-Sana’i` by Kasani (5/164).
(2) Because a blind person is able to perceive and comprehend the intended transaction, which makes their trade like that of a sighted individual. [685] Al-Mughni by Ibn Qudamah (4/159).
(3) Because just as the sign language of a mute person serves as a substitute for their speech, the smell and taste of a blind person serves as a substitute for their sight. [686] Al-Mughni by Ibn Qudamah (4/159).
The trade of an absent commodity:
Selling an absent commodity without it having been seen it or described in a way that removes uncertainty. Selling an absent commodity without it being viewed by the buyer beforehand or described to them is permissible, and the buyer has the option to inspect it upon seeing it. This was the position of the Hanafis [687] Tabyin al-Haqa’iq by Zayla`i (4/24, 25) and Al-Bahr al-Ra’iq by Ibn Nujaym (6/28). and Malikis, [688] The Malikis stipulated for the validity of the sale that the buyer be given the option [to keep or return the commodity] upon seeing it. If both parties remain silent about the option stipulation, then the trade is invalid. Mawahib al-Jalil by Hattab (6/118). an opinion of the Shafi`is, [689] Mughni al-Muhtaj by Shirbini (2/18) and Hashiyata Qalyubi wa `Umayrah (2/205). and statement related from Ahmad, [690] Al-Insaf by Mardawi (4/213). See also Al-Mughni by Ibn Qudamah (3/494, 495). it was transmitted from a majority of scholars, [691] Nawawi said: “In the positions of the scholars regarding the sale of absent items... Malik, Abu Hanifah, Ahmad, Ibn al-Mundhir, and the main body of scholars from the Companions, Successors, and those who came after them have stated that it is valid. Baghawi and others have transmitted this consensus from the majority of scholars.” Al-Majmu` by Nawawi (9/301). and it was the preferred opinion of Ibn Taymiyyah in the most apparent of his statements. [692] Ibn Taymiyyah said: “So, if someone buys something without seeing it, with the stipulation that he has the option [to keep or return the commodity] when he sees it, there is no inherent harm in this trade. Rather, the preponderant position is that it is valid, as indicated by one of two statements related from Ahmad and the position of Abu Hanifah and others. The Companions used to engage in transactions involving absent items, as evidenced in several documented cases, and there is no record of any Companion objecting to such transactions.” Nazariyyat al-Aqd, p. 225. He also said: “It is permissible to sell absent items without specification with the option to inspect.” Al-Fatawa al-Kabir (4/22). And: “Regarding the sale of absent items, some scholars permitted selling them in general, even if they are not described, whilst others have prohibited it without a description. Malik allowed the sale with a description but not otherwise, and this view is more just.” Majmu` al-Fatawa (20/345; 29/306). See also Al-Mustadrak `ala Majmu` al-Fatawa (4/7) and Al-Insaf by Mardawi (4/213).
Proofs:
Firstly: From narrations
Salim narrated that Ibn `Umar said: “When two of us were engaging in a trade, each of us had the option to withdraw so long as the two parties had not separated. Once, I engaged in a transaction with `Uthman, and I sold him some property I had in the valley for some property of his in Khaybar. When I completed the transaction, I turned away walking on my heels like a camel, fearing that `Uthman might revoke the deal before I left.” [693] Reported by Bukhari in an emphatic form (sighat al-jazm) before hadith no. (2116), Tahawi in Sharh Ma`ani al-Athar (7328) in a mawsul narration, and al-Daraqutni (3/6). The wording here is from Tahawi. The narration was graded sahih by Ibn `Abd al-Barr in Al-Tamhid (14/26), and its chain was graded sahih by Albani in Irwa’ al-Ghalil (5/155).
`Uthman ibn `Affan and `Abdullah ibn `Umar engaged in a transaction involving an absent commodity, and they considered it permissible. This took place in the presence of the Companions of the Messenger of Allah, and no-one disapproved of their action. [694] Sharh Ma`ani al-Athar by Tahawi (4/363).
Secondly: Because not knowing does not lead to disputes in this case, for if the buyer does not accept the item, they may return it. Therefore, it becomes like not knowing something about a commodity you have seen. [695] Tabyin al-Haqa’iq by Zayla`i (4/24).
Thirdly: It is a contract of exchange, and its validity does not require a sighting of the contracted upon, as is the case with marriage. [696] Al-Mughni by Ibn Qudamah (3/495) and Al-Majmu` by Nawawi (9/288).
Selling an absent commodity by describing it to the buyer in a way that removes uncertainty: [697] For example, by saying what it is called (a catalogue).
Selling a specific absent commodity by describing it to the buyer in a way that removes uncertainty is permissible, and this was the position of the majority: the Hanafis, [698] According to the Hanafis, it is valid to sell absent items without specification, so it is even more appropriate for it to be valid with a description. In this case, the buyer is granted the option to keep or return the commodity upon seeing it, even if the option is not explicitly stipulated. Tabyin al-Haqa’iq by Zayla`i (4/24, 25) and Al-Bahr al-Ra’iq by Ibn Nujaym (6/28). Malikis, [699] Mawahib al-Jalil by Hattab (6/118) and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/20). and Hanbalis, [700] According to the Hanbalis, the trade is valid if it is the type of transaction in which salam (advance payment for deferred delivery) is valid. Al-Insaf by Mardawi (4/213) and Sharh Muntaha al-Iradat by Bahuti (2/12). and an opinion of the Shafi`is. [701] Mughni al-Muhtaj by Shirbini (2/18) and Hashiyata Qalyubi wa `Umayrah (2/205).
This is for the following reasons:
(1) The description serves as a substitute for physically seeing the item. [702] Al-Muqaddimat al-Mumahhidat by Ibn Rushd al-Jadd (2/77) and Nihayat al-Muttalib by Jawhari (5/10).
(2) By analogy with the validity of the sale by a blind person, for they can buy and sell through description. [703] Bada’i` al-Sana’i` by Kasani (5/164).
Top of Form
(3) It is a type of sale by description, and it is valid just as is the case with an upfront payment for a deferred good. [704] This is the evidence of the Hanbalis. Al-Mughni by Ibn Qudamah (3/495).
(4) By analogy to the permissibility of selling grains whilst they are still in their stalks. If it is permissible to sell grains in their stalks, when they are not visible, then it is permissible to buy them when they are absent based on description. There is no distinction, if the commodity is absent, between selling it based on description or based on a sample shown to the buyer. [705] Al-Muqaddimat al-Mumahhidat by Ibn Rushd al-Jadd (2/78).
Guaranteeing an absent commodity
Guaranteeing an absent commodity [706] For example, if the absent goods are damaged before the buyer takes possession, in which case the responsibility would lie with the seller. is generally the responsibility of the seller, and this was the position of the majority: the Hanafis, [707] Al-`Inayah by Babarti (9/28) and Al-Binayah Sharh Al-Hidayah by `Ayni (8/46). the most well-known position of the Malikis, [708] The Malikis make an exception if the trade involves real estate, and a trade by description is guaranteed by the buyer through the contract. Al-Taj wa al-Iklil by Mawwaq (4/299), Minah al-Jalil by `Ulaysh (5/233, 234), Sharh al-Zurqani `ala Mukhtasar Khalil (5/271), and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/28). and the Hanbalis. [709] Al-Iqna` by Hajawi (2/110) and Kashshaf al-Qina` by Bahuti (3/242). The seller’s remaining control of the commodity means that they retain responsibility for guaranteeing it. [710] Mughni al-Muhtaj by Shirbini (2/65).
Secondly: Transferring possession of the commodity
1. How transferring possession of a commodity is achieved
Every commodity is received according to its nature, [711] If the sale is by measure or weight, then it is received by measure or weight. If the sale is by heap (i.e., without a specific measure), then it is received by being transferred [to the buyer]. If the commodity is dirhams or dinars, then they are received by hand. If it is clothing, then it is received by being transferred. If it is an animal, then it is received by being led it from its place. If the commodity is something that cannot be moved, such as real estate, then receiving it is received by the seller relinquishing control to the buyer, and no physical transfer is required. Fruits on trees are also received by [the seller] relinquishing control. and this was the position of the majority: the Malikis, [712] Mukhtasar Khalil, p. 157, and Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/144, 145). Shafi`is, [713] Minhaj al-Talibin by Nawawi, p. 103, and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/409). and Hanbalis. [714] Al-Iqna` by Hajawi (2/112) and Kashshaf al-Qina` by Bahuti (3/247).
Proofs:
Firstly: From the Sunnah
Ibn `Umar narrated that during the time of the Messenger of Allah, they used to agree that if they purchased foodstuffs by heap (i.e., without a specific measure), then they had the option of re-selling it in situ until it had been transferred.” [715] Reported by Bukhari (6852) and Muslim (1527). The wording here is from Muslim.
Ibn `Umar narrated, “We used to buy foodstuffs from the caravans by heap. The Messenger of Allah forbade us from re-selling it until we had transferred it from its place.” [716] Reported by Bukhari (2123) and Muslim (1527). The wording here is from Muslim.
Jabir narrated, “The Messenger of Allah forbade trading foodstuffs until two sa`s had been measured: the sa` of the seller and the sa` of the buyer.” [717] Reported by Ibn Majah (2228).
The Shariah mentions all forms of transferring possession. The first two narrations above mention transferring possession of items purchased in bulk, and the third narration mentions transferring possession of items purchased by weight. [718] Al-Mughni by Ibn Qudamah (4/85).
Secondly: Because transferring possession is a general concept in the Shariah, and its definition is based on cultural standards, such as physical acquisition on the part of the buyer and separation on the part of the seller. [719] Al-Mughni by Ibn Qudamah (4/85).
2. Transferring possession of a shared commodity
Transferring possession of shared property is achieved by all buyers collectively taking possession. If the commodity is something that cannot be moved, then taking possession is achieved through relinquishment on the part of the seller. [720] By enabling the buyer to use it, for example by handing over the keys if it is real estate. If the property can be moved, then taking possession is achieved through physical transfer. This was the position of the Shafi`is [721] Al-Majmu` by Nawawi (9/281), Rawdat al-Talibin by Nawawi (3/524), and Nihayat al-Muhtaj by Ramli (4/239). and Hanbalis. [722] Al-Furu` by Ibn Muflih (7/411), Al-Insaf by Mardawi (4/340), and Kashshaf al-Qina` by Bahuti (3/248). See also Al-Mughni by Ibn Qudamah (6/45). This is because taking possession is a general concept in the Shariah, and its definition is based on cultural standards, such as acquisition and separation. The norm is for immovable property (i.e., real estate) to be received through relinquishment and movable commodities to be received through physical transfer. [723] Al-Mughni by Ibn Qudamah (4/85).
3. Transferring possession of common shares and investment units
It is permissible to transfer possession of common shares [724] A “share” is a document representing a tangible or monetary share in the capital of a company, which is tradable and entitles its owner to specific rights. See Al-Asham wa al-Sanadat wa Ahkamuha fi al-Fiqh al-Islami by Ahmad Khalil, p. 48. and investment units [725] The investment unit represents a common share in the investment pool divided into investment units, similar to shares but differing in ease of exit and redemption. It involves various contractual relationships with the fund or the issuance that is divided into units. Majallah Majma` al-Fiqh al-Islami, issue 9, (2/111-112). through bank entries [726] The bank entry is the process of bank-initiated transfers carried out through entries made by the bank. The bank debits a specific amount from one client’s account to credit another client’s account with the same amount. Alternatively, it involves transferring a certain amount from one account to another through entries in the two accounts. Majallat al-Buhuth al-Islamiyyah (8/27). in investment portfolios [727] An investment portfolio is the overall collection of investments that generate returns for an investor or are held by a financial institution, such as banks, investment companies, financial brokers, and similar entities. These portfolios are managed and developed to earn commissions and fees as agreed upon. See Qamus al-Mustalahat al-Maliyyah al-Akthar Istikhdhama bi al-Aswaq al-Maliyyah, p. 44. . This was the decision of the Islamic Fiqh Academy of the Organization of Islamic Cooperation. [728] Majallah Majma` al-Fiqh al-Islami, issue 6, (1/771-772). See the decision of the Islamic Fiqh Academy, no. (55/4/6), issued during its sixth conference in Jeddah, Kingdom of Saudi Arabia, from 17-23 Sha`ban 1410 AH / 14-20 March 1990 CE, on the topic of “Transferring possession: Its forms, particularly modern ones, and their rulings.” This is because acquiring wealth, whether physically taking by hand, measurement, or weight in the case of foodstuffs, or through transfer into the buyer’s possession, is considered relinquishment on the part of the seller and a transfer of the authority to dispose of it to the buyer, even if the buyer has not physically taken possession. The method of taking possession of things differs according to their nature and what is customarily considered “taking possession” in their regard. [729] Majallah Majma` al-Fiqh al-Islami, issue 6, (1/771).
4. Transferring possession of a certified cheque
Receiving a cheque when it is physically handed over is legally considered “taking possession” of its contents if it is a cashier’s or certified cheque, or when it falls into the category of a certified cheque through the amount being reserved in the drawer’s account, and it is permissible to transact with such a cheque in situations that require taking possession. If the cheque is not a cashier’s or certified cheque, nor falls into the category of a certified cheque, then it is not permissible to transact with it in situations that require taking possession. [730] See the section on dealing with commercial documents.
5. Transferring possession of the price of gold and silver through credit cards [731] A credit card is an instrument given by the issuer to a biological or legal individual based on a contract between them, enabling the cardholder to make purchases of goods or services from those who accept it without immediate payment, as the issuer commits to make the payment [on their behalf]. See Majallah Majma` al-Fiqh al-Islami, issue 6, (1/771).
It is permissible to purchase gold and silver using credit cards that are “covered” [732] The reason for the permissibility of “covered” ones is the possibility of immediate payment. , and not permissible with those that are not. [733] The difference between the two is that with a covered card, the price is paid from the client’s account, whereas with an uncovered card, the price is paid by the card issuer. The cardholder holds a balance with a covered card but not with an uncovered one, where they instead purchase on credit. This was the decision of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation, [734] Decision no. 108 (2/12), on the topic of “Uncovered credit cards”, included the following: “It is not permissible to purchase gold, silver, or cash currencies with an uncovered card.” Majallah Majma` al-Fiqh al-Islami, issue 12, (3/676). The decision of the Islamic Fiqh Academy stated: “It is permissible to issue and use covered credit cards so long as their terms do not include interest charges for delayed payments.” Majallah Majma` al-Fiqh al-Islami, issue 15, (3/219). the Accounting and Auditing Organisation for Islamic Financial Institutions, [735] The Shariah Standards of the Accounting and Auditing Organisation for Islamic Financial Institutions stated: “It is permissible to purchase gold, silver, or currencies using a debit card, just as it is allowed with a credit card or deferred debit card in situations where the issuing institution can immediately transfer the amount to the cardholder without any delay.” Al-Ma`ayir al-Shar`iyyah, p. 81. and the Jordanian Department of Religious Rulings, [736] The verdict issued by the Jordanian Department of Religious Rulings included the following: “Credit cards are a modern payment method aimed at reducing the need to carry cash when moving from one place to another. They are divided into two types: covered by balance and uncovered. The ruling on them varies according to their nature. If the card is covered by balance, the relationship between the issuer and the cardholder is that of an agent for payment, and it is permissible for the issuer to charge a fee for it. However, if the card is not covered, the relationship is one of guarantee and loan. Charging a fee for this relationship, except for the actual cost of issuing the card, is not permissible according to the consensus of the scholars of the four schools of thought. Furthermore, it is not permissible to use a card that includes an explicit usurious condition requiring the cardholder to pay a certain amount if they are delayed in repaying their debt (i.e., the overdraft). Using this type of card is not allowed, even if the customer is confident about meeting the repayment deadline. This is because the stipulation of usury in a loan is sufficient to render it impermissible from the outset. The decision of the International Islamic Fiqh Academy, no. 108 (2/12), stated: ‘It is not permissible to issue or use an uncovered credit card it if it is conditioned with a usurious charge, even if the cardholder is determined to repay within the interest-free grace period.’ There is also a set of general conditions that must be considered when dealing with these cards, including: 1. The issuing entity should not stipulate a usurious charge in case of delayed payment. 2. The merchant should not increase the price of goods due to the commission charged by the card issuer. 3. The purchase should not involve gold, silver, or currencies if the card is not covered. Therefore, it is permissible to use the credit cards that have been mentioned whilst taking into account the stipulations and regulations that been set out.” The Official Website of the Jordanian Department of Religious Rulings – verdict no. 3408. and was the ruling issued by Ibn `Uthaymin. [737] Ibn `Uthaymin stated regarding a debit card, which is essentially the same as a covered credit card: “If someone buys gold, is it sufficient to pay with a debit card? Yes, with the stipulation that the transfer of money from the buyer’s account to the seller's account take place at the same time. If this is the case, it is considered ‘transferring possession’.” Liqa’ al-Bab al-Maftuh (no. 227). He also said, concerning uncovered credit cards: “As for the bank card, you can buy everything with this card, even gold. This is considered as immediate payment. However, this amount is only transferred to the seller’s account after a few days. Therefore, it is not permissible to purchase with a bank card.” Liqa’ al-Bab al-Maftuh (no. 200).
Proofs:
Firstly: From the Sunnah
`Ubadah ibn al-Samit narrated, “The Messenger of Allah said, ‘Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, like for like, equal for equal, from hand-to-hand. If the items are different, then trade as you wish, so long as it is hand-to-hand.’” [738] Reported by Muslim (1583).
An uncovered credit card eliminates the hand-to-hand exchange of payment and therefore falls under the prohibition in the narration above, which specifies that such exchanges must be hand-to-hand. [739] See Majallah Majma` al-Fiqh al-Islami, issue 12, (3/648).
Secondly: Taking possession is a prerequisite for purchasing gold and silver. Conducting the transaction with an uncovered credit card, in which the payment is not completed until after a delay, does not fulfill the condition of taking possession within the same sitting. [740] Majallah Majma` al-Fiqh al-Islami, issue 12.
Thirdly: A covered credit card is a permissible means of payment according to the Shariah because the charge arising from its use is settled from the balance of its holder. [741] See Watha’iq al-Nawazil by Jizani, p. 903. Therefore, it is permissible to purchase gold and silver with one.
6. Taking possession of the upfront payment in the trade of a debt for a specific commodity (a salam transaction)
It is obligatory to take possession of the upfront payment at the time of contract in the trade of a debt for a specific commodity (a salam transaction), and this was the position of the majority: [742] The Malikis permit delaying the upfront payment in a salam trade for up to three days. Sharh al-Zurqani `ala Mukhtasar Khalil (5/365) and Minah al-Jalil by `Ulaysh (5/332). the Hanafis, [743] Tabyin al-Haqa’iq by Zayla`i (4/117) and Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/110). Shafi`is, [744] Fath al-`Aziz by Rafi`i (8/281) and Mughni al-Muhtaj by Shirbini (2/102). and Hanbalis. [745] Kashshaf al-Qina` by Bahuti (3/304).
Proofs:
Firstly: From the Sunnah
Ibn `Abbas narrated, “The Messenger of Allah came to Madinah and the people were paying for dates in advance. He said, ‘Whoever pays for a commodity in advance should do so for a specific measure, specific weight, and specific period.’” [746] Reported by Bukhari (2240) and Muslim (1604). The wording here is from Bukhari.
His statement, “Whoever pays for a commodity in advance should do so,” means to hand over the payment because the term “payment in advance (salaf)” does not apply until one has handed over the advance payment to the payee before departing. [747] Kashshaf al-Qina` by Bahuti (3/304).
Secondly: “Salam” indicates an immediate payment for a deferred good, which involves taking possession of the payment before the two parties separate, therefore remaining in line with the name of this type of transaction. If the upfront payment is delayed, then it will not be considered a “salam” transaction, but the sale of a debt for a debt, which is unanimously prohibited. [748] See Tabyin al-Haqa’iq by Zayla`i (4/117).
Thirdly: Because a “salam” transaction involves some uncertainty which is tolerated due to necessity, but this does not extend to tolerating the uncertainty of delaying the upfront payment. [749] See Mughni al-Muhtaj by Shirbini (2/102).
Thirdly: Delegating the responsibility for taking possession of the commodity
Delegating the responsibility for taking possession of the commodity is valid, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [750] Mukhtasar Ikhtilaf al-`Ulama’ by Tahawi (3/36), Al-Mabsut by Sarakhsi (13/134), and Al-Fatawa al-Hindiyyah (3/621). Malikis, [751] Mawahib al-Jalil by Hattab (6/136) and Minah al-Jalil by `Ulaysh (4/495). Shafi`is, [752] Al-Majmu` by Nawawi (9/280) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/420). and Hanbalis. [753] Al-Insaf by Mardawi (4/339), Kashshaf al-Qina` by Bahuti (3/246), and Sharh Muntaha al-Iradat by Bahuti (2/61). This is because such delegation is customary amongst traders due to their need for it. Traders cannot handle every transaction themselves, so the Shariah allows a delegate to handle them on their behalf. [754] Al-Mabsut by Sarakhsi (11/148).
Fourthly: Disposing of the commodity before taking possession of it
1. Disposing of foodstuffs before taking possession of them
Selling foodstuffs before they are received is not permissible.
Proofs:
Firstly: From the Sunnah
`Abdullah ibn `Umar narrated, “The Messenger of Allah said, ‘Whoever purchases a foodstuff should not sell it before they have taken possession of it.’” [755] Reported by Bukhari (2133) and Muslim (1526).
Secondly: From the scholarly consensus:
A consensus on this issue was related by Ibn al-Mundhir, [756] Ibn al-Mundhir said: “The scholars unanimously agree that the person who buys food is not allowed to sell it until they have taken possession of it.” Al-Awsat (10/146). It was also transmitted from him by Ibn Qudamah. See Al-Mughni by Ibn Qudamah (4/83). Ibn Rushd, [757] Ibn Rushd said: “As for selling food before taking possession of it, the scholars unanimously prohibit it, except for what is reported from `Uthman al-Battiyy.” Bidayat al-Mujtahid (2/144). Nawawi, [758] Nawawi said: “They conveyed the consensus on the invalidity of selling food that has been sold before taking possession of it. They said that the only difference of opinion concerns other contexts. The position of `Uthman al-Battiyy is considered an isolated and disregarded opinion.” Sharh Muslim (10/170). and Ibn al-Qayyim. [759] Ibn al-Qayyim said: “Ibn al-Mundhir said: ‘The scholars unanimously agree that whoever buys food cannot sell it until he takes possession of it. This consensus has been reported from more than one scholar. As for what was reported from `Uthman al-Battiyy about its permissibility, if it is authentic, it is not to be relied upon.’” Hashiyat Ibn al-Qayyim `ala Sunan Abi Dawud (9/276).
2. Disposing of specific commodities other than foodstuffs before taking possession of them
Disposing of specific commodities other than foodstuffs before taking possession of them is not permissible in the absolute, and this was the position of the Shafi`is, [760] Fath al-`Aziz by Rafi`i (8/414) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/414). the view of Muhammad ibn al-Hasan and Zufar from the Hanafis, [761] Tabyin al-Haqa’iq by Zayla`i (4/79) and Al-`Inayah by Babarti (6/512). a statement related from Ahmad, [762] Al-Mughni by Ibn Qudamah (4/86). See also Hashiyat Ibn al-Qayyim `ala Sunan Abi Dawud (9/277). and the preferred opinion of Ibn Taymiyyah, [763] Ibn Taymiyyah said: “Someone who buys something cannot sell it before taking possession of it, regardless of whether it is an item that is measured or weighed or anything else. This was an opinion related from Ahmad which was preferred by Ibn `Aqil and it is the position of Shafi`i. It was also related from Ibn `Abbas. This ruling applies regardless of whether the commodity is under the guarantee of the buyer or not, and the principles of Imam Ahmad support this view.” Al-Fatawa al-Kubra (5/391). Ibn al-Qayyim, [764] Ibn al-Qayyim said: “It is not permissible to sell any commodity before taking possession of it. This was the position of Ibn `Abbas and Muhammad ibn al-Hasan and was one of two opinions related from Ahmad, and this is the correct view that we prefer.” Hashiyat Ibn al-Qayyim `ala Sunan Abi Dawud (9/277). and Ibn `Uthaymin. [765] Ibn `Uthaymin said: “It is not permissible to sell any commodity except after taking possession of it.” Al-Sharh al-Mumti` (8/379). He also said: “The correct opinion is that nothing can be sold until it is received.” Al-Sharh al-Mumti` (8/372).
Proofs:
Firstly: From the Sunnah
Ibn `Abbas narrated, “As for what the Prophet forbade, it was selling foodstuffs before they were received.” Ibn `Abbas added, “I think everything else follows the same ruling.” [766] Reported by Bukhari (2135) and Muslim (1525). The wording here is from Bukhari.
The prohibition as regards foodstuffs is explicitly stated in the narration, and for other commodities is derived through analogy, as the statement of Ibn `Abbas indicates. [767] Hashiyat Ibn al-Qayyim `ala Sunan Abi Dawud (9/278).
Hakim ibn Hizam narrated, “I said, ‘O Messenger of Allah, I purchase merchandise, so which of it is lawful for me and which is unlawful for me.’ He replied, ‘When you purchase a piece of merchandise, do not sell it until you have taken possession of it.’” [768] Reported by Ahmad (15316), Ibn Hibban (4983), and Bayhaqi (10997). The wording here is from Ahmad. Graded sahih by Ibn Hibban, Ibn Hazm in Al-Muhalla bi al-Athar (8/108), and Albani in Sahih al-Jami` (342), and graded sahih li ghayrih by Shu`ayb al-Arna’ut in his explication of Musnad Ahmad (15316). Ibn Baz graded its chain jayyid in Majmu` al-Fatawa (19/115). The narration was also related with the wording: “I bought some food from the sadaqah and made a profit on it (by re-selling it) before I took possession of it. I came to the Messenger of Allah and mentioned that to him, and he said: ‘Do not sell it until you take possession of it.’” This was reported by Nasa’i (4603), Ibn Hibban (4985), and Tabarani (3/197; 3110). The wording here is from Nasa’i. Graded sahih by Ibn Hibban, Ibn Hazm in Al-Muhalla bi al-Athar (8/108), and Albani in Sahih Sunan al-Nasa’i (4603), and its chain was graded sahih according to the conditions of Muslim by Shu`ayb al-Arna’ut in his explication of Sahih Ibn Hibban (4985).
His statement, “a piece of merchandise,” and in another transmission, “a thing,” is indefinite, which implies generality. [769] Bidayat al-Mujtahid by Ibn Rushd (3/164) and Al-Sharh al-Mumti` by Ibn `Uthaymin (8/372).
`Amr ibn Shu`ayb narrated from his father, from his grandfather, that the Messenger of Allah forbade selling on the condition of a loan, two conditions within one transaction, and profiting from what is not under your guarantee. [770] Reported by Abu Dawud (3504), Tirmidhi (1234), Nasa’i (4631), Ibn Majah (2188), and Ahmad (6918). The wording here is from Nasa’i. Tirmidhi said: “Hasan sahih.” Graded sahih by Ibn Hazm in Al-Muhalla bi al-Athar (8/520), Ibn al-Qattan in Al-Wahm wa al-Iham (5/487), and Ibn Taymiyyah in Majmu` al-Fatawa (30/84). Albani said in Sahih Sunan al-Nasa’i (4631): “Hasan sahih.”
Selling a possession before taking possession of it falls under “profiting from what is not under your guarantee”, for something does not enter under one’s guarantee except by taking possession of it. [771] See Al-Mabsut by Sarakhsi (9/16).
Secondly: Because ownership of a commodity before physical possession is weak and does not mean one can dispose of it, for it remains under the guarantee of the seller, and if it is damaged then the trade will be invalidated. [772] Al-`Aziz Sharh al-Wajiz by Rafi`i (8/415).
Thirdly: The buyer is not able to deliver the commodity before taking possession of it, so it is not permissible to sell it. For the same reason, it is not permissible to rent out the commodity before taking possession. [773] Tabyin al-Haqa’iq by Zayla`i (4/79, 80).
3. Selling a divided commodity after it has been divided but before it has been received [774] For example, to sell one’s share of an inheritance or bequeathed wealth before taking possession of it.
Selling a divided commodity after it has been divided but before it has been received is permissible, and this was the position of the majority: [775] The most well-known position of the Malikis is that it is not permissible, but if it happens, it is permissible for the executor of the will and the adult heirs with him. See Mawahib al-Jalil by Hattab (7/436). the Hanafis, [776] Al-Fatawa al-Hindiyyah (3/13). See also Al-Muhit al-Burhani by Ibn Mazah (6/277). Shafi`is, [777] Minhaj al-Talibin by Nawawi, p. 103; Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/403); and Nihayat al-Muhtaj by Ramli (4/88). and Hanbalis. [778] Al-Furu` by Ibn Muflih (6/284) and Kashshaf al-Qina` by Bahuti (3/245).
Proofs:
Firstly: From the Sunnah
`Abdullah ibn `Abbas narrated, “The Messenger of Allah forbade selling war spoils until they had been divided.” [779] Reported by Nasa’i (4645), Daraqutni (3/68), and Hakim (2611). The wording here is from Nasa’i. Graded sahih by Albani in Sahih Sunan al-Nasa’i (4645) and Shu`ayb al-Arna’ut in his explication of Sunan al-Daraqutni (3051), and graded hasan by Wadi`i in Sahih al-Musnad (653).
Secondly: Due to the absence of a guarantee for the divided item through a compensatory contract, its ownership remains complete and not subject to the risk of annulment, as is the case with commodities, deposits, or contracts of safekeeping (wadi`ah), the wealth of a company, or a gift of usufruct (`ariyah). [780] Kashshaf al-Qina` by Bahuti (3/245).
4. Disposing of a sold debt before taking possession
The sale of a stable debt to the person who owes it for its current value
It is permissible to sell a stable debt [781] For example, a loan, a post-consummation mahr, or rent before obtaining the benefit. to the person who owes it for its current value, [782] For example, if one man owes another a debt of 1000 dollars and wishes to give him 4000 Saudi riyals instead within the contract meeting. and this was agreed upon by the four jurisprudential schools of thought: [783] They stipulated conditions for that, including: the commodity should be something permissible to sell before receiving, and this does not apply to that which is deferred, as will be explained in the following section. This was the position of the majority. The Malikis stipulated that the debt should not be in the form of food, the debtor should be present and agreeable, the trade should involve a different kind of commodity, it should not intend harm to the debtor, and the price should be cash. See Al-Mudawwanah by Sahnun (3/133), Al-Taj wa al-Iklil by Mawwaq (4/542), and Mawahib al-Jalil by Hattab (6/234). the Hanafis, [784] Tabyin al-Haqa’iq by Zayla`i (4/139, 140), Al-Bahr al-Ra’iq by Ibn Nujaym (5/280; 6/216), and Al-Fatawa al-Hindiyyah (3/102). Malikis, [785] Mawahib al-Jalil by Hattab (6/234) and Minah al-Jalil by `Ulaysh (5/46). Shafi`is, [786] Mughni al-Muhtaj by Shirbini (2/80, 81) and Nihayat al-Muhtaj by Ramli (4/90, 92). and Hanbalis. [787] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/87), Kashshaf al-Qina` by Bahuti (3/265, 307), and Matalib ‘Uli al-Nuha by Rahibani (3/172).
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “Allah has permitted trading.” [788] al-Baqarah, 275.
The fundamental position regarding trade is that it is permissible unless there is a specific evidence to suggest that it is not, [789] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/87) and Al-Binayah Sharh Al-Hidayah by `Ayni (8/270). and in this instance there is no such evidence.
Secondly: Narrations
Sa`id ibn Jubayr narrated that Ibn `Umar used to not see any harm in exchanging dirhams for dinars or dinars for dirhams. [790] Reported by Nasa’i (4585) and `Abd al-Razzaq in Al-Musannaf (14577), and the same meaning was reported by Ibn Abi Shaybah in Al-Musannaf (21208). The wording here is from Nasa’i. Graded sahih by Albani in Sahih Sunan al-Nasa’i (4599), and Shu`ayb al-Arna’ut graded its chain hasan in his explication of Musnad Ahmad (8/490).
This narration indicates the permissibility of trading things that are held in trust (fi dhimmah), such as one form of currency for another. [791] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/87).
Thirdly: Because when the debt is sold to someone who owes it, he becomes the recipient because the debt is now under his responsibility. [792] Al-Mabsut by Sarakhsi (15/122) and Bada’i` al-Sana’i` by Kasani (5/148).
- The sale of an unstable debt to someone who owes it if it is deferred
The scholars differed regarding selling an unstable debt to someone who owes it if it is deferred, with two opinions.
The first opinion states that it is impermissible to sell an unstable debt (which is deferred) to someone who owes it under any circumstances, regardless of whether it is sound or not, and this was the position of the majority: the Hanafis, [793] Al-Hidayah by Marghinani (3/74) and Al-Bahr al-Ra’iq by Ibn Nujaym (6/179). Shafi`is, [794] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/405) and Nihayat al-Muhtaj by Ramli (4/90). and Hanbalis, [795] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/87) and Al-Insaf by Mardawi (5/84). and a consensus was reported on this issue. [796] Ibn Qudamah said: “As for trades of the deferred before taking possession, we do not know of any difference of opinion regarding the impermissibility of that.” Al-Mughni (4/227). Ibn al-Qayyim said, in his critique of the consensus: “They said: ‘As for your claim that there is a consensus on its prohibition, how can the claim of consensus be valid when it contradicts the position of the Ink of the Nation, Ibn `Abbas, and the Scholar of Madinah, Malik ibn Anas? It has been established that there is no explicit text, consensus, or analogy regarding its impermissibility; rather both the explicit texts and analogy imply its permissibility, as previously mentioned. In cases of disagreement, it is obligatory to refer the matter back to Allah and His Messenger.’” Tahdhib al-Sunan (9/260).
Proofs:
Firstly: From the Sunnah
Abdullah ibn Dinar narrated, "I heard Ibn Umar say, ‘The Prophet said, 'Whoever purchases a foodstuff should not sell it until they have taken possession of it.'" [797] Reported by Bukhari (2133) and Muslim (1526).
The Prophet forbade selling foodstuffs before taking possession of them. If the receiver does not complete taking possession of the commodity, its sale is forbidden. This ruling can be extended to items other than foodstuffs based on analogy. [798] Al-Mughni by Ibn Qudamah (4/227).
Secondly: Because it is a transaction that has not yet been guaranteed, it is not permissible to sell it, as is the case with foodstuffs before taking possession of them. [799] Al-Mughni by Ibn Qudamah (4/227).
The second opinion states that it is impermissible to sell an unstable debt (which is deferred) to someone who owes it, [800] The Malikis permitted it according to certain stipulations. See Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/220, 221) and Minah al-Jalil by `Ulaysh (5/396). and it is a statement related from Ahmad, [801] Al-Insaf by Mardawi (5/84). the view of Ibn `Abbas k, [802] Majmu` al-Fatawa by Ibn Taymiyyah (29/519). and the preferred opinion of Ibn Taymiyyah, [803] Ibn Taymiyyah stipulated that the sale should be at the current market price and that the contracting parties should finalise the agreement before dispersing if the transaction involves something where there is a risk of postponement usury. He said: “If one makes a salam (advanced payment, delayed delivery) agreement for maize then receives replacement for it (`iwad or i`tiyad) via barley or its like, then there are two scholarly views on this. The first is that salam cannot be replaced for other than it. This is the position of Abu Hanifah, Shafi`i, and Ahmad in one of his relayed opinions. The second is that it is overall permissible to undertake such a replacement as long as it is for the current market price or less. This is what is narrated from Ibn `Abbas, where he permitted that one may receive replacement of the same value for a salam agreement, and that he must not make a profit twice. The second relayed position of Ahmad is that it is permissible to replace maize with barley if it is not more expensive. The second position is more accurate. It is the view of Ibn `Abbas, and there is known opposition to him among the Companions. The reasoning is that a salam debt is a fixed one and so it is permissible to exchange it, in the same way a loan or a price for a good may be exchanged for something [of the same value]. It is also the two replacements in trade; thus, replacement is acceptable here as it is there.” Majmu` al-Fatawa (29/512, 519). Ibn al-Qayyim, [804] Ibn al-Qayyim said: “If it is permissible in general for goods to be sold by the seller before the exchange of possession, a deferred debt is even more deserving of permissibility, just as mutual cancellation is allowed for it before exchanging possession, in contrast to mutual cancellation with other types of goods. An illustration of this is that Ibn `Abbas did not permit the sale of a commodity before taking possession of it, and he argued this based on the prohibition of the Prophet against selling food before taking possession of it. He said: ‘I consider everything to have the same status [in this regard] as food.’ Despite this, it is established from him that he allowed the sale of a deferred debt to someone who owes it, so long as there is no profit involved. He did not make a distinction between food and other items, nor between items sold by weight or measure and others.” Tahdhib al-Sunan (9/257, 258). and Ibn `Uthaymin. [805] Ibn `Uthaymin stipulated that the sale should be at the current market price and that the contracting parties should finalise the agreement before dispersing if the transaction involves something where there is a risk of postponement usury, and that one does not include it as a price for another salam agreement. He said: “If it were said, ‘Is it permissible to sell the object of a salam agreement before its payment?’ The answer would be, ‘Yes. It is permissible to sell it for the provider of the good in question (in the salam agreement).’ According to Shaykh al-Islam, it is permissible to sell it even to a third party (outside the two parties of the salam agreement). However, this is questionable. In reality, if one were to sell it to a third party it may be difficult for them to take it. Additionally, if one were to sell it to a third party for what is normally sold as a postponed good, then this is essentially what has become in their possession. So, this allowance is not immediately obvious to me as acceptable. Shaykh al-Islam permits the selling of a debt to other than the indebte, with the condition that they are able to take it on. If the goods of a salam agreement are to be sold to the one who will receive it, however, he opines that three conditions must be met: 1. That he does not profit from the transaction, only selling it for the market price at the time of selling. If he sells it for more than the market price he would profit from what he cannot guarantee, and profiting from what is not guaranteed is prohibited by the Prophet. For example, there is a salam contract where a party has sold one-hundred units of grain and it is time to deliver them. Their market value is 200 dinars. He may not sell them to the buyer for 250 dinars, since he is profiting from this grain before he is its guarantor—he neither owned it nor gained possession of it. Thus, he would be profiting from what he cannot guarantee. The narration of Ibn `Umar, Allah be pleased with them both, states: ‘There is no harm if it is sold for the market price so that he does not profit from what he cannot guarantee.’ If one-hundred units are valued at 200 dirhams and the owner sells it for 150 dirhams, it’s permissible. If it is permissible to sell it for the market price at the time, then any lower price has a better claim for lawfulness. This is especially that the legal justification for the impermissibility of a higher price was making profit for what is not guaranteed, and, here, it is a person making a loss. The intention behind specifying the market price at the time is that the price does not exceed that. If it is less, it is not an issue. 2. That the contracting parties should finalise the agreement before dispersing if the transaction involves something where there is a risk of postponement usury. For example: selling grain for barley—one-hundred grain units for two-hundred barley units. This is permissible as long as agreement is reached and exchange takes place prior to dispersion. It is a condition to finalise the agreement before dispersing when trading grain for barley. The narration of `Umar states, ‘There is no problem if you sell it for its market price so long as you have not yet dispersed and anything remains between you [to be agreed].’ One may be trading dirhams for dinars or vice versa. It is a condition to finalise the agreement before dispersing when trading dirhams for dinars. 3. That one does not include it as a price for another salam agreement. If he does, he would most likely make profit from it, leading to profit without one first being the guarantor of what is being sold. For example: The fulfilment of the salam is via one-hundred grain units. [At the time of delivery,] the two parties say they’ll make the settlement over five sheep—salam is permissible for livestock as previously mentioned—of such and such features which are deliverable in a year. The latter scenario is impermissible. The expectation is that this would not take place except with profit, and that the sheep are worth one-hundred and twenty grain units, and that it leads to a roll-on in debt such that it is renewed every time it is due. This is a ploy to make a debt indefinite and increase it for the person owed. Every time it is due, one says, ‘Let’s make it another salam contract’, and so on until the debts are compounded. Thus, the preponderant position is that it is permissible but with the three aforementioned conditions fulfilled.” Al-Sharh al-Mumti` (9/87).
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “Allah has permitted trading.” [806] al-Baqarah, 275.
The fundamental position regarding trade is that it is permissible unless there is a specific evidence to suggest that it is not, [807] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/87) and Al-Binayah Sharh Al-Hidayah by `Ayni (8/270). and in this instance there is no such evidence.
Secondly: Narrations
Ibn Abbas said, “If you have given a loan for food, and the due date arrives, but you cannot find the food, then take it back with a discount, and do not profit from it twice.”
Ibn Abbas permitted it, and the statement of a Companion serves as evidence so long as there is nothing to contradict it. [808] Tahdhib al-Sunan by Ibn al-Qayyim (9/256).
Thirdly: Because the deferred debt is one of two compensations in the trade, it is permissible to substitute it, as would be the case with anything else. [809] Majmu` al-Fatawa by Ibn Taymiyyah (29/519).
The sale of an unsettled debt to someone other than the debtor, except in the case of a deferred sale
The sale of an unsettled debt [810] For example, a pre-consummation mahr or rent before obtaining the benefit. to someone other than the debtor, except in the case of a deferred sale, is permissible, and this was the position of the Hanafis [811] Al-Durr al-Mukhtar li al-Haskafi wa Hashiyat Ibn `Abidin (5/153, 154). and Shafi`is, [812] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/306) and Nihayat al-Muhtaj by Ramli (4/90). a statement related from Ahmad, [813] Majmu` al-Fatawa by Ibn Taymiyyah (29/519) and Al-Fatawa al-Kubra by Ibn Taymiyyah (5/393). and the preferred opinion of Ibn Taymiyyah. [814] Ibn Taymiyyah said: “It is permissible to sell a debt from the one who has it. The amount in question is payable to the person owed. However, if it is sold for what may not be sold in postponement then there are two conditions: that the time of repayment arrives and that it is paid. This is in order to avoid rendering the transaction as usury. The same is true if one sells it for a known owned entity. If one sells it for other than that, there are two views: the first is that the same conditions no longer apply. The other is that they still apply since delaying payment is nasi’ah (postponement), like selling a debt for another debt.” Majmu` al-Fatawa (29/512). He also said: “It is permissible to sell a debt from the indebted or other than him, and there is no difference between salam transactions here and other transactions. This is a relayed position from Ahmad. Ibn `Abbas said this may only be for the amount in question so that one does not gain in profit what he cannot guarantee.” Al-Fatawa al-Kubra by Ibn Taymiyyah (5/393).
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “Allah has permitted trading.” [815] al-Baqarah, 275.
The fundamental position regarding trade is that it is permissible unless there is a specific evidence to suggest that it is not, [816] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/87) and Al-Binayah Sharh Al-Hidayah by `Ayni (8/270). and in this instance there is no such evidence.
Secondly: Because a debt under one’s responsibility is considered an acquired right for the creditor. [817] Majmu` al-Fatawa by Ibn Taymiyyah (29/512).
The sale of a stable debt to other than the debtor for a current price [818] For example, if a person has a debt owed by Zayd, which is represented by goods valued at 1000 riyals, for example, and he sells these goods to `Amr for an immediate payment of 1000 riyals (cash), and the goods become a debt owed by Zayd to `Amr.
The scholars differed regarding selling a stable debt to other than the debtor for a current price, with two opinions:
(1) It is not permissible to sell a stable debt to other than the debtor for a current price, and this was the position of the Hanafis [819] The Hanafis made exceptions to the prohibition of selling debt to someone other than the debtor in three cases: when the person has been granted the authority to receive it, and therefore is acting as an agent to collect the debt for the creditor and then for themselves; for money transfers (hawalah); and if stipulated in a will. Tabyin al-Haqa’iq by Zayla`i (4/83), Al-Bahr al-Ra’iq by Ibn Nujaym (5/280), and Hashiyat Ibn `Abidin (5/152). and Hanbalis [820] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/88) and Sharh Muntaha al-Iradat by Bahuti (4/92). , a view of the Shafi`is, and the view of some of the predecessors. [821] Amongst them were Thawri and Ishaq. See Al-Mughni by Ibn Qudamah (6/48). This is because the seller is unable to deliver it, so the trade is not valid, as would be the case with selling a servant who has run away. [822] Al-Mughni by Ibn Qudamah (6/48).
(2) It is permissible to sell a stable debt to other than the debtor for a current price, [823] The Malikis and Shafi`is permitted it according to certain stipulations. See Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/63) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/409). and this was a view of the Shafi`is, [824] Al-Muhadhdhab fi Fiqh al-Imam al-Shafi`i by Shirazi (2/136) and Al-Bayan fi Madhhab al-Imam al-Shafi`i by al-`Imrani (6/34). a statement related from Ahmad, [825] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/88), Al-Insaf by Mardawi (5/87), and Tahdhib al-Sunan by Ibn al-Qayyim (9/257). and the preferred opinion of Ibn Taymiyyah, [826] Ibn Taymiyyah said: “The Maliki school of thought allows the sale of a stable debt to someone other than the debtor, as he permits for all kinds of debts. This is also one of two positions related from Ahmad, as he stated regarding selling debts to someone other than the debtor and selling deferred debts to someone other than the debtor. Although this view may not be documented in later works of his later followers, it was documented in many of Ahmad’s responses and is the sounder view, and it aligns with his [jurisprudential] principles.” Majmu` al-Fatawa (29/506). See also Al-Mubdi` by Burhan al-Din Ibn Muflih (4/88) and Tahdhib al-Sunan by Ibn al-Qayyim (9/257). Ibn al-Qayyim, [827] Ibn al-Qayyim said: “Ahmad affirmed the permissibility of selling debt to someone who is under one’s protection and to others as well. Although most of our companions do not report that he viewed selling debt to someone under one’s responsibility as permissible, Ahmad clearly stated it in various contexts, as related by our Shaykh, Abu al-`Abbas ibn Taymiyyah. Those who restricted the permissibility of selling debt to someone under one’s responsibility drew an analogy with a salam trade, saying that since it is a debt, it is not permissible to sell it, as is the case with a deferred debt. However, this argument is weak for two reasons. Firstly, it has been established in the narration of Ibn `Umar that selling debt is permissible. And secondly, because there is no consensus on the prohibition against selling a deferred debt, for we have mentioned that Ibn `Abbas saw it as permissible and Malik permitted it to be sold to other than the debtor. Those who distinguish between the deferred debt and other debts did not make a clear and effective distinction, and analogical reasoning implies equality between them.” Tahdhib al-Sunan (9/257). and Ibn `Uthaymin. [828] Ibn `Uthaymin permitted it with the stipulation that they must be capable of taking it. He said: “If someone sells a debt under their responsibility to a person who is capable of acquiring it, the correct opinion is that it is permissible. There is no evidence prohibiting it, and the default position regarding trade is that it is permissible, because of the Statement of Allah Exalted: ‘Allah has permitted trading’ (al-Baqarah, 275).” Al-Sharh al-Mumti` (8/448).
Proofs:
Firstly: From the Quran
The Statement of Allah Exalted, “Allah has permitted trading.” [829] al-Baqarah, 275.
The fundamental position regarding trade is that it is permissible unless there is a specific evidence to suggest that it is not, [830] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/87) and Al-Binayah Sharh Al-Hidayah by `Ayni (8/270). and in this instance there is no such evidence.
Secondly: Because it is a stable debt, it is like selling it to the debtor themselves. [831] Nihayat al-Muhtaj by Ramli (4/92).
Thirdly: By analogy to the permissibility of buying a deposited item that is not in the hands of its owner. [832] Al-Muhadhdhab fi Fiqh al-Imam al-Shafi`i by Shirazi (2/136).
Fourthly: Because it follows the same principle as a transfer, it is valid. [833] Al-Bayan fi Madhhab al-Imam al-Shafi`i by `Imrani (6/34).
The sale of an unstable debt to other than the debtor for a deferred price [834] For example, is owed one hundred kilogrammes of dates by Zayd, and they sell that to `Amr for a deferred payment of 1000 riyals.
Selling an unstable debt to other than the debtor for a deferred price is not permissible, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [835] Tabyin al-Haqa’iq by Zayla`i (4/83) and Al-Bahr al-Ra’iq by Ibn Nujaym (5/280). Malikis, [836] According to the Malikis, this falls under the category of trading a deferred debt for a deferred debt. Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/62) and Minah al-Jalil by `Ulaysh (5/45). Shafi`is, [837] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/409) and Nihayat al-Muhtaj by Ramli (4/92). and Hanbalis. [838] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/88) and Sharh Muntaha al-Iradat by Bahuti (2/72). This is because the obligation of each party remains engaged without any benefit for either of them. The intended purpose of a contract is to take possession of a commodity, and in this case the contract does not fulfil its intended purpose, making it an obligation without benefit. [839] Majmu` al-Fatawa by Ibn Taymiyyah (29/472).
Trading a deferred debt for a deferred debt
Trading a deferred debt for a deferred debt is not permissible. [840] There are different forms of this, one of which is the salam contract, which is a trade by description where the delivery of goods is deferred to a known future time. For example, selling one hundred kilogrammes of wheat which will be delivered after a specified term, and without receiving the price upfront. This would fall under the category of trading a debt for a debt.
Evidence from the scholarly consensus:
A consensus on this issue was related by Ibn al-Mundhir, [841] Ibn al-Mundhir said: “The scholars unanimously agree that trading a debt for a debt is not permissible. For example, if a person sells another person ten measures of wheat, with the price to be paid at a specified future time, and does not receive the price upfront, this would be considered trading one debt for another.” Al-Awsat (10/119). Ibn Taymiyyah, [842] Ibn Taymiyyah said: “The prohibition against the deferred debt has been related. The ‘deferred debt trade’ is the exchange of one thing that has been deferred and has not been received for another thing that has been deferred and not received. For example, if someone sells a deferred commodity for a deferred payment, and they are both delayed, then this is not permissible by consensus.” Majmu` al-Fatawa (20/512). Ibn al-Qayyim, [843] Ibn al-Qayyim said: “The ‘deferred debt’ is the thing that has been deferred and has not been received. For example, if someone exchanges one thing for another, both of which are deferred, then this is not permissible by consensus.” I`lam al-Muqi`in (1/293). and Shawkani. [844] Shawkani said: “Hakim reported from Abu al-Walid Hassan, mentioned that it is the sale of a deferred commodity for another deferred commodity, as was transmitted by Abu `Ubayd in Al-Gharib, Daraqutni from the scholars of language. Bayhaqi related from Nafi`, who said: ‘It is the sale of debt for debt.’ This serves as evidence for the impermissibility of selling debt for debt, and there is a scholarly consensus on this matter, as reported by Ahmad in his previous statement.” Nayl al-Awtar (5/186).
Reciprocal settling of debts (trading the cancellation of one debt for the cancellation of another) [845] For example, if one person owes another gold, and the other person owes him silver, and they agree to offset each other’s debt, so that one is cancelled with the cancelling of the other. The Malikis permit this under the condition that both debts are current; if either of them is deferred, then it is not permissible. See Mawahib al-Jalil by Hattab (6/536) and Sharh al-Zurqani `ala Mukhtasar Khalil (5/415).
The reciprocal settling debts is permissible without restriction, and this was the position of the Hanafis [846] Tabyin al-Haqa’iq by Zayla`i (4/139, 140) and Hashiyat Ibn `Abidin (5/265). and the preferred opinion of some Shafi`is, [847] It was also the preferred opinion of his father, Taqi al-Din al-Subki. Taj al-Din al-Subki said: “There is no clear evidence prohibiting the trade of one fixed amount of cash in debt for another fixed amount of cash in debt, and there is a leaning towards its permissibility. This was the position of Malik and Abu Hanifah.” Tabaqat al-Shafi`iyyat al-Kubra (10/231). Ibn Taymiyyah, [848] Ibn Taymiyyah said: “When money turns into specific amounts, the definition changes. It is not permissible to trade one specific amount for another specific amount with a deferred term. This is like the prohibition mentioned by the Prophet against the trade of one deferred debt for another. However, he did not prohibit the trade of a fixed, deferred debt that will be cancelled in exchange for another fixed, deferred debt. This second example entails the discharge both parties’ liabilities, and for this reason it is considered permissible according to the preponderant views of the scholars.” Majmu` al-Fatawa (29/472). and Ibn al-Qayyim. [849] Ibn al-Qayyim said: “Regarding the trade of debt for debt, it can be divided into the trade of an obligation for an obligation, which is prohibited, as we have mentioned; the trade of the cancellation of a debt for a cancellation of a debt; the trade of a cancellation for an obligation; and the trade of an obligation for a cancellation, which there is some disagreement regarding. I say that in the case of trading the cancellation of a debt for a cancellation of a debt is the reciprocal settling of debts, and trading a cancellation for an obligation is for example when a person trades a debt under their responsibility for another debt of a different kind, in which case the sold debt is cancelled and compensation is obligatory. This is the sale of debt by someone who is responsible for it. As for the other three categories, each of them has a valid purpose and sought-after benefit, as evident in the matter of the reciprocal settling of debts. If both their debts are cancelled, they are released from their obligations, which is sought after by them and by the Legislator.” I`lam al-Muqi`in (1/293).
This is for the following reasons:
(1) Because through the reciprocal settling of debts, the original contract is annulled, and a new contract is formed which is attached to the debt, for when they altered the obligations of the contract, they voided it and established a new arrangement suitable to their current circumstances, just like renewing a trade with a higher price than the original one. [850] Radd al-Mukhtar by Ibn `Abidin (5/265).
(2) Because trading one deferred debt for another means exchanging one price for another with a deferred term, and this occupies both parties without benefitting either of them. However, this method discharges both parties from the liability of their debts, which is desirable from the perspective of the Shariah because it involves the clearance of obligations. [851] Majmu` al-Fatawa by Ibn Taymiyyah (29/472).
Waiving a portion of the deferred debt in exchange for early repayment (the issue of “taking less for accelerated payment”, or “da` wa ta`ajjal”) [852] For example, if one person is owed a debt by another individual with a specified term – one month, for example – and they both agree to waive a portion of the debt, with payment of the remaining amount brought forward to before the expiration of the agreed-upon term.
Waiving a portion of the deferred debt in exchange for early repayment is permissible, and this was a statement related from Ahmad, [853] Al-Furu` by Ibn Muflih (6/423) and Al-Insaf by Mardawi (5/176). the view of Zufar from the Hanafis [854] Sharh Mushkil al-Athar by Tahawi (11/64). and a group of the predecessors [855] Its permissibility has been related from Ibn `Abbas, Nakha`i, and Ibn Sirin. See Al-Mughni by Ibn Qudamah (4/367). , the preferred opinion of Ibn Taymiyyah [856] Ibn Taymiyyah said: “The reconciliation of a debt for [payment of] part of it is considered valid. This was a position related from Ahmad and was also reported as a statement of Shafi`i.” Al-Fatawa al-Kubra (5/396). See also Al-Furu` by Ibn Muflih (6/423) and Al-Insaf by Mardawi (5/176). and Ibn al-Qayyim [857] Ibn al-Qayyim said: “The second opinion is that it is permissible, and this was the view of Ibn `Abbas and one of two positions related from Ahmad, as reported by Ibn Abi Musa and others, which was preferred by our Shaykh because it is the opposite of usury. Usury involves an increase in one of the two compensations in exchange for a deferred term, whereas this involves the waiver of part of the compensation in exchange for the cancellation of part of the term. Both parties benefit, and there is no presence of usury, neither in its actual, linguistic, or customary sense, for usury involves an increase, which is absent in this case. Those who prohibited it did so by equating it with usury. However, there is a clear distinction between the statements ‘Either increase [the debt] or pay it off’ and ‘Pay me immediately, and I will grant you a gift (i.e., a discount) of one hundred.’ Where is the similarity between the two? There is no explicit text, consensus, or valid analogy to prove its impermissibility.” I`lam al-Muqi`in (5/331, 332). , the decision of Islamic Fiqh Academy of the Organisation of Islamic Cooperation, [858] Decision no. (66/2/7) of the Islamic Fiqh Academy included the following: “‘Hatitah’ is reducing a debt for the purpose of expediting its payment, whether requested by the creditor or the debtor. “Da` wa ta`ajjal” is permissible according to the Shariah and does not fall under prohibited usury as long as it is not based on a prior agreement.” Majallah Majma` al-Fiqh al-Islami, issue 15, (3/219). the ruling of the Permanent Committee, [859] The verdict of the Permanent Committee stated: “There is a difference of opinion amongst the people of knowledge regarding the issue known amongst jurists as “da` wa ta`ajjal”. The most correct view from their opinions is that it is permissible. This is a position related from Imam Ahmad and the preferred opinion of the two Shaykhs: Ibn Taymiyyah and Ibn Qayyim. It is also attributed to Ibn `Abbas k.” Fatawa al-Lajnah al-Da’imah – First assembly (13/168). and the preferred opinion of Ibn Baz [860] Ibn Baz said: “It is permissible for the debtor to say, ‘I will give you your right in a single payment, but reduce my payment’, and the debt is [for example] 4000 over four years." If the debtor says, ‘I will settle it for you if you waive 1000’, and the creditor agrees, saying, ‘Yes, I hereby waive 1000. You give me 3000, and I will pardon you [the rest].’ There is no harm in that, and the correct opinion is that it is permissible, although many scholars may have a different view. Nevertheless, the correct opinion is that it is permissible because it involves two benefits: expediting the right and releasing the obligation. There are two advantages in this: expediting the right for the owner of the right, even if it is not complete, instead of waiting for years to receive it, and easing the burden on the debtor by reducing a portion of the debt.” The Official Website of Shaykh Ibn Baz. and Ibn `Uthaymin [861] Ibn `Uthaymin said: “If someone purchases goods in instalments with a term of five years and then, by the facilitation of Allah, becomes capable of paying off the entire amount within two years, does he have the right to seek a discount from the seller or not? We say that he does not have the right to seek a discount. However, if the seller agrees and says, ‘I accept early payment with a reduction’, then the correct opinion is that there is no harm in that because it entails a benefit for both the creditor and debtor and it does not involve injustice or usury.” Liqa’ al-Bab al-Maftuh (no. 146). .
This is for the following reasons:
(1) Because it involves discharging the obligation, for the Legislator is keen on freeing individuals from debts. [862] Ighathat al-Lahfan Masa’id al-Shaytan by Ibn al-Qayyim (2/684).
(2) Because it entails mutual benefit for both parties. It frees the debtor from a portion of the debt and allows the creditor to benefit from a quicker repayment. This is the opposite of usury, which entails an increase in one of the parties’ compensation in exchange for a delay in repayment. In this case, on the other hand, part of the compensation is relinquished in return for an early payment of part of the debt. In other words, both part of the compensation and part of the term are dropped. Therefore, both parties benefit without the involvement of usury, either in its actual, linguistic, or customary sense, for usury is an increase, and no such increase is present in this context. [863] I`lam al-Muqi`in by Ibn al-Qayyim (5/331, 332) and Ighathat al-Lahfan Masa’id al-Shaytan by Ibn al-Qayyim (2/684).
Fifthly: The destruction of all or part of the commodity before or after possession is exchanged
1- Guarantee of the commodity if it is damaged by a heavenly event before possession is exchanged has two cases:
(A) If there is a right of compensation for the commodity
The seller guarantees the commodity if it is damaged by a heavenly event before possession is exchanged if there is a right of compensation for the commodity based on measure, weight, number, or length, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [864] Al-Mabsut by Sarakhsi (13/166) and Hashiyat Ibn `Abidin (4/566). Malikis, [865] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/144) and Minah al-Jalil by `Ulaysh (5/230). Shafi`is, [866] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393) and Nihayat al-Muhtaj by Ramli (4/76). and Hanbalis. [867] Al-Insaf by Mardawi (4/335) and Kashshaf al-Qina` by Bahuti (3/242). This is because the continuation of the seller’s control of the commodity implies the continuation of their guarantee. [868] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393).
(B) If there is no right of compensation for the commodity
The seller guarantees the commodity if it is damaged by a heavenly event before possession is exchanged [869] Ibn Taymiyyah, Ibn al-Qayyim, and Ibn `Uthaymin conditioned the seller’s liability on whether the buyer was able to take possession or not. See Majmu` al-Fatawa by Ibn Taymiyyah (20/344), Al-Fatawa al-Kubra by Ibn Taymiyyah (5/391), I`lam al-Muqi`in by Ibn al-Qayyim (4/37, 38) and Al-Sharh al-Mumti` by Ibn `Uthaymin (8/382). if there is no right of compensation for the commodity based on measure, weight, number, or length, as is the case with real estate and non-measurable goods, and this was the position of the Hanafis [870] According to the Hanafis, a trade is voidable before taking possession in the event of the destruction of the commodity, and they do not distinguish between cases where there is a right to compensation and other cases. Tabyin al-Haqa’iq by Zayla`i (4/80) and Hashiyat Ibn `Abidin (4/566). and Shafi`is [871] The Shafi`is do not distinguish between cases where there is a right to compensation and other cases. Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393) and Nihayat al-Muhtaj by Ramli (4/76). and a statement related from Ahmad [872] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/15) and Mukhtasar al-Fatawa al-Misriyyah li Ibn Taymiyyah, p. 339. .
This is for the following reasons:
(1) Because the continuation of the seller’s control of the commodity implies the continuation of their guarantee. [873] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393).
(2) Because it has not come under the buyer’s control and they have not been able to take possession of it, it does not come under their guarantee. [874] I`lam al-Muqi`in by Ibn al-Qayyim (4/29).
2. Guarantee of the commodity if it is damaged by human action before possession is exchanged has three cases:
(A) Damaged by the actions of the seller
The seller guarantees the commodity if it is damaged by their own actions before possession is exchanged, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [875] Al-Bahr al-Ra’iq by Ibn Nujaym (6/15) and Hashiyat Ibn `Abidin (4/566). Malikis, [876] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/150, 151) and Minah al-Jalil by `Ulaysh (5/243). Shafi`is, [877] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393) and Nihayat al-Muhtaj by Ramli (4/76). and Hanbalis. [878] Al-Iqna` by Hajawi (2/110) and Kashshaf al-Qina` by Bahuti (3/243).
This is for the following reasons:
(1) Because the commodity in the possession of the seller is guaranteed by one of two guarantees, which is the price. [879] This is the evidence of the Hanafis and Shafi`is. Bada’i` al-Sana’i` by Kasani (5/238).
(2) Because damage is like a defect, and it occurred whilst the seller’s guarantee was binding. [880] This is the evidence of the Hanbalis. Kashshaf al-Qina` by Bahuti (3/243).
(3) Because the continuation of the seller’s control of the commodity implies the continuation of their guarantee. [881] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/393).
(B) Damaged by the actions of the buyer
The buyer guarantees the commodity if it is damaged by their actions before possession is exchanged, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [882] Al-Bahr al-Ra’iq by Ibn Nujaym (6/15) and Hashiyat Ibn `Abidin (4/566). Malikis, [883] Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/150) and Minah al-Jalil by `Ulaysh (5/243). Shafi`is, [884] Fath al-`Aziz by Rafi`i (8/400) and Rawdat al-Talibin by Nawawi (3/501). and Hanbalis. [885] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/16) and Kashshaf al-Qina` by Bahuti (3/243). This is because it was damaged by their actions, so the price remains applicable as if they had taken possession of it. [886] Al-Kafi by Ibn Qudamah (2/19). See also Bada’i` al-Sana’i` by Kasani (5/238).
(C) Damaged by the actions of a third party [887] i.e., not the buyer or seller. before possession is exchanged
The third party guarantees the commodity if they damage it before possession is exchanged, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [888] Al-Bahr al-Ra’iq by Ibn Nujaym (6/15) and Hashiyat Ibn `Abidin (4/566). Malikis, [889] Al-Taj wa al-Iklil by Mawwaq (4/479) Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (3/150). Shafi`is, [890] Minhaj al-Talibin by Nawawi, p. 102, and Rawdat al-Talibin by Nawawi (3/502). and Hanbalis. [891] Kashshaf al-Qina` by Bahuti (3/243). This is because they have harmed someone else’s property, and whoever damages something also guarantees it. [892] Fath al-`Aziz by Rafi`i (8/402) and Kashshaf al-Qina` by Bahuti (3/243).
Sixthly: Withholding a commodity until payment is delivered
- Withholding a commodity until a deferred payment is delivered
The seller does not have the right to withhold a commodity if the price is deferred, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [893] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/14) and Al-Bahr al-Ra’iq by Ibn Nujaym (5/302). Malikis, [894] Al-Taj wa al-Iklil by Mawwaq (4/478) Sharh al-Zurqani `ala Mukhtasar Khalil (5/285). Shafi`is, [895] Mughni al-Muhtaj by Shirbini (2/34, 75) and Hashiyat al-Sharwani `ala Tuhfat al-Muhtaj (4/305). and Hanbalis. [896] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10) and Al-Insaf by Mardawi (4/331). This is because the seller accepted the deferring of payment when they concluded the contract, so it is not permissible for them to now decide to withhold the commodity. [897] Mughni al-Muhtaj by Shirbini (2/75) and Sharh al-Zurqani `ala Mukhtasar Khalil (5/285).
- Withholding a commodity until an immediate payment is delivered
(A) Withholding a commodity until an immediate payment is delivered when the price is cash
If the seller and buyer disagree, with the seller saying “I will not deliver the commodity until I receive the price”, and the buyer saying “I will not deliver the price until I receive the commodity”, and the price is cash or an equivalent, then both should be handed over simultaneously, and this was the position of the Hanafis [898] Tabyin al-Haqa’iq by Zayla`i (4/14) and Al-Fatawa al-Hindiyyah (3/16). and a view of the Hanbalis [899] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10) and Al-Insaf by Mardawi (4/330). . This is because neither of them has precedence over the other in terms of delivery. Both of them are commodities, so they should be delivered at the same time. [900] Bada’i` al-Sana’i` by Kasani (5/238).
(B) Withholding a commodity until an immediate payment is delivered when the price is a liability
If the seller and buyer disagree, with the seller saying “I will not deliver the commodity until I receive the price”, and the buyer saying “I will not deliver the price until I receive the commodity”, and the price is a liability, then the seller should be compelled to deliver the commodity and then the buyer should be compelled to deliver the payment, and this was the position of the Shafi`is [901] Rawdat al-Talibin by Nawawi (3/524), Mughni al-Muhtaj by Shirbini (2/74, 75), and Nihayat al-Muhtaj by Ramli (4/103). See also Hashiyat al-Jamal (3/80). and Hanbalis [902] Al-Mubdi` by Burhan al-Din Ibn Muflih (4/10) and Al-Insaf by Mardawi (4/331). and the preferred opinion of Ibn `Uthaymin [903] Ibn `Uthaymin said: “In the statement, ‘If it was a current debt, then seller should be compelled [first] and then the buyer, if the price was in the [same] sitting’, the pronoun in the phrase ‘if it was’ refers to the price. This is because he stated at the beginning, ‘And the price is specific.’ So, if it was a current debt, the seller is compelled [first] and then the buyer, if the price was in the [same] sitting.” Al-Sharh al-Mumti` (8/360). . This is because the buyer’s right is connected to the specified good and the seller’s right is connected to the deferred payment, and what is connected to the specified good is prioritised, as is the case for compensation for crimes and other types of debt. [904] Mughni al-Muhtaj by Shirbini (2/74).
(C) Withholding a commodity until the remaining portion of an immediate payment is delivered
The seller has the right to withhold the commodity until the remaining portion of an immediate payment is delivered, and this was stipulated by the Hanafis [905] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/14). See also Bada’i` al-Sana’i` by Kasani (5/250). and Hanbalis [906] Sharh Muntaha al-Iradat by Bahuti (2/57) and Matalib ‘Uli al-Nuha by Rahibani (3/142). . This is because the right to withhold cannot be divided, so the whole commodity is withheld until the whole price is received. [907] Bada’i` al-Sana’i` by Kasani (5/250) and Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/14).
- Withholding multiple commodities from a single transaction with an immediate payment until the whole payment is delivered
Withholding multiple commodities from a single transaction with an immediate payment until the whole payment is delivered is permissible, and this was the position of the majority: the Hanafis, [908] Al-Bahr al-Ra’iq by Ibn Nujaym (5/331). See also Bada’i` al-Sana’i` by Kasani (5/250). Shafi`is, [909] Nihayat al-Muhtaj by Ramli (4/106) and Hashiyat al-Sharwani `ala Tuhfat al-Muhtaj (4/416). and Hanbalis. [910] Sharh Muntaha al-Iradat by Bahuti (2/57), Kashshaf al-Qina` by Bahuti (3/240), and Matalib ‘Uli al-Nuha by Rahibani (3/142).
This is for the following reasons.
(1) Because transferring possession of one of the commodities without the others would separate a single transaction in regards to taking possession. The buyer cannot separate the single transaction in regards to acceptance by accepting one of the commodities without the others, so he also cannot separate it in terms of transferring possession, as transferring possession has much in common with the contract itself. [911] Bada’i` al-Sana’i` by Kasani (5/250).
(2) Because the commodity, in its right to be withheld for the price, is indivisible. Therefore, the whole commodity is withheld for the whole price. [912] Bada’i` al-Sana’i` by Kasani (5/250).
(3) Because all the goods are covered by one contract. [913] Hashiyat al-Sharwani `ala Tuhfat al-Muhtaj (4/416).
- Withholding multiple commodities from a single transaction with an immediate payment from two individuals if only one of them has paid
Withholding multiple commodities from a single transaction with an immediate payment from two individuals if only one of them has paid is not permissible. Rather, whoever has paid should have their goods delivered to them, and this was stipulated by the Shafi`is [914] Mughni al-Muhtaj by Shirbini (2/76). and was the view of Abu Yusuf from the Hanafis [915] Bada’i` al-Sana’i` by Kasani (5/250).
This is for the following reasons:
(1) Because each buyer is obliged to pay half of the price. If one of them pays their half, they have fulfilled their obligation, and therefore there is no reason for their right to receive their goods to depend on the payment of the other. [916] Bada’i` al-Sana’i` by Kasani (5/250).
(2) Because if the commodity is withheld, and the other buyer has the option to either pay or not pay their portion, then the first buyer will lose their right in principle and principal, and this is not permissible. For this reason, the Shariah considers waiver and relinquishment as a form of delivery and receipt. [917] Bada’i` al-Sana’i` by Kasani (5/250).
(3) Because the buyer delivered everything that they were obliged to deliver based on the premise that a transaction with more than one buyer is considered to be more than one transaction. [918] Mughni al-Muhtaj by Shirbini (2/76).
Seventhly: Exclusions in trade
1. Excluding a specific item from a sale [919] To say, for example, “I sell you this group of sheep except this lamb”, and specify the lamb you are excluding.
Excluding a specific item from a sale is generally valid, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [920] According to the Hanafis, anything which is permissible to sell on its own is also permissible to exclude. Tabyin al-Haqa’iq by Zayla`i (4/85). See also Bada’i` al-Sana’i` by Kasani (5/175). Malikis, [921] Sharh al-Zurqani `ala Mukhtasar Khalil (5/49) and Minah al-Jalil by `Ulaysh (4/473). Shafi`is, [922] Mughni al-Muhtaj by Shirbini (2/16). and Hanbalis. [923] Sharh Muntaha al-Iradat by Bahuti (2/14, 15), Kashshaf al-Qina` by Bahuti (3/167), and Matalib ‘Uli al-Nuha by Rahibani (3/34, 35).
This is for the following reasons:
(1) Because the seller excluded something that can be sold on its own. This is like selling a share of a commodity, like a third or a quarter. [924] Bada’i` al-Sana’i` by Kasani (5/175).
(2) Because both the item that has been excluded and the commodity that has been excluded from are known, so the trade is valid, as would be the case if a person sold a garden and excluded a specific palm tree from it. [925] Al-Mughni by Ibn Qudamah (4/79).
2. Selling animals and excluding their unborn offspring
The scholars differed regarding selling animals and excluding their unborn offspring, with two opinions.
(A) It is not valid to sell animals and exclude their unborn offspring, [926] This type of trade is invalid according to the relied upon opinion of the four jurisprudential schools of thought, except for what some Malikis mention about the validity of the trade despite the invalidity of the exclusion. and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [927] Tabyin al-Haqa’iq by Zayla`i (4/85) and Al-Bahr al-Ra’iq by Ibn Nujaym (6/92). Malikis, [928] According to some Malikis, the exclusion is invalid but the trade is valid. Hashiyat al-Dasuqi ?ala al-Sharh al-Kabir (4/376), Hashiyat al-`Adawi `ala Kifayat al-Talib al-Rabbani (2/245), and Al-Ma`unah `ala Madhhab `Alim al-Madinah (1012). Shafi`is, [929] Fath al-`Aziz by Rafi`i (8/206) and Al-Majmu` by Nawawi (9/324). and Hanbalis. [930] Al-Insaf by Mardawi (4/222) and Kashshaf al-Qina` by Bahuti (3/172).
Proofs:
Firstly: From the Sunnah
Jabir ibn `Abdillah narrates, “The Messenger of Allah forbade muhaqalah, muzabanah, mu`awamah, mukhabarah (one of the narrators said: ‘Mu`awamah is the sale of years of fruit harvest’), and thunya, and he made an allowance for `araya.” [931] Reported by Bukhari (2381) and Muslim (1536). The wording here is from Muslim.
The Prophet forbade “thunya”, which is to sell something and exclude a part of it. The Prophet forbade that, and because the characteristics of the unborn offspring are unknown. One does not know if the foetus will live, give birth to its own offspring or not, be born as a male or female, or be born as twins. [932] See Fath al-Bari by Ibn Hajar (5/315).
Secondly: Because what cannot be validly singled out in the contract cannot be validly excluded from it. Selling the unborn foetus on its own is not permissible, so the same applies to excluding it. [933] Tabyin al-Haqa’iq by Zayla`i (4/58).
(B) The second opinion states that it is valid to sell animals and exclude their unborn offspring, and this was a view of the Shafi`is, [934] Fath al-`Aziz by Rafi`i (8/206) and Al-Majmu` by Nawawi (9/324). a statement related from Ahmad, [935] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/371) and Al-Insaf by Mardawi (4/222). and the preferred opinion of Ibn Hazm [936] Ibn Hazm said: “We view the sale of animals pregnant without their unborn offspring as permissible.” Al-Muhalla bi al-Athar (7/300). and Ibn `Uthaymin [937] Ibn `Uthaymin said: “The sale of a pregnant animal with the exclusion of its offspring, according to the madhhab, is not valid. However, based on our revised view that if a person sells a pregnant animal and excludes the offspring, the sale is valid, then it is considered valid in this case.” Al-Sharh al-Mumti` (8/179).
Proofs:
Firstly: From the Quran
The generality of the Statement of Allah Exalted, “Allah has permitted trading.” [938] al-Baqarah, 275.
Secondly: Because the unborn foetus can be separated from the animal without mutilation or torture and is considered the property of the seller, and the seller has the right to sell or retain their property as they wish. [939] Al-Muhalla bi al-Athar by Ibn Hazm (7/300).
feqhia
