Firstly: Trade by estimation (jizaf)

1. Defining trade “by estimation”

Linguistically: “Jizaf” means “an unknown amount”, and it is the noun derived from “jazafa”, “mujazafah”. “Juzaf”, with a damma, means “non-measurable”. [1784] See Lisan al-`Arab by Ibn Manzur (9/28).

Technically: of items that are counted, measured, or quantified as a whole, without specifying a measure, weight, or number. [1785] See Al-Sharh al-Saghir li al-Dardir ma` Hashiyat al-Sawi (3/35). See also Mawahib al-Jalil by Hattab (6/100).

2. The ruling on trade by estimation

Trade by estimation is valid with a known price if the quantity, though unknown, becomes known through visual inspection.

Evidences:

Firstly, from the Book:

The Statement of Allah Exalted: “Allah has permitted trading and forbidden interest.” [1786] al-Baqarah, 275.

The verse is general in permitting trade and therefore includes trade by estimation. [1787] See Al-Mughni by Ibn Qudamah (4/15) and Hashiyat al-`Adawi `ala Kifayat al-Talib al-Rabbani (2/184).

Secondly, from the Sunnah:

Ibn `Umar k narrated: “We used to buy foodstuffs from the caravans by heap. The Messenger of Allah g forbade us from re-selling it until we had transferred it from its place.” [1788] Reported by Muslim (1527).

Thirdly, from the scholarly consensus:

A consensus on this issue was related by Ibn `Abd al-Barr, [1789] Ibn `Abd al-Barr said: “Selling food by estimation, using the ‘subrah’ and the like, is permissible by consensus. The established Sunnah, as indicated in authentic hadiths, serves as evidence for the permissibility of such transactions. I am not aware of any difference of opinion on this matter.” Al-Tamhid (13/340). Ibn al-`Arabi, [1790] Ibn al-`Arabi said: “For food that is sold by weight or measure, there is no difference of opinion among scholars regarding the permissibility of selling it by the heap.” Al-Qabas, p. 822. Ibn Qudamah, [1791] Ibn Qudamah said: “The permissibility of selling foodstuffs like fruits or grains by estimation when the seller and buyer are unaware of the exact quantity is allowed. This was the view of Abu Hanifah and Shafi`i, and we do not know of any difference of opinion [on this issue].” Al-Mughni (4/93). and Ibn Taymiyyah. [1792] Ibn Taymiyyah said: “Selling specific items by estimation is permissible according to the Sunnah and scholarly consensus.” Majmu` al-Fatawa (30/307).

And fourthly, because the commodity becomes known through visual inspection, so its trade is valid, as is the case with for example clothing or animals. [1793] See Al-Mughni by Ibn Qudamah (4/93) and Al-Kafi by Ibn Qudamah (2/10).

3. Prerequisites of trade by estimation

Seeing the commodity in its entirety

Seeing the commodity in its entirety is a prerequisite of trade by estimation, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [1794] Because according to them, ignorance of the commodity is negated by its presence and gesturing towards it. Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/5). Malikis, [1795] Mukhtasar Khalil, p. 145, and Mawahib al-Jalil by Hattab (6/100). Shafi`is, [1796] The Shafi`is did not state when the visual inspection should occur. Fath al-`Aziz by Rafi`i (4/49) and Rawdat al-Talibin by Nawawi (3/367). and Hanbalis. [1797] Kashshaf al-Qina` by Bahuti (3/169). This is because a commodity is sold based either by visual inspection or by description, and when the item is present, mere description is not sufficient, because a visual inspection allows for direct knowledge. [1798] See Mawahib al-Jalil by Hattab (6/100) and Kashshaf al-Qina` by Bahuti (3/169).

Not knowing the measure, weight, or number of the commodity

Both parties not knowing the measure, weight, or number of the commodity is not a prerequisite of trade by estimation, and this was the position of the majority – the Hanafis, [1799] The Hanafis stipulated one condition for its validity: that it is distinguished [from other commodities] and pointed out. Mukhtasar Ikhtilaf al-`Ulama’ by Tahawi (3/62), Tabyin al-Haqa’iq by Zayla`i (4/5), and Hashiyat Ibn `Abidin (4/538). Shafi`is, [1800] Al-`Aziz Sharh al-Wajiz by Rafi`i (8/144). See also Al-Bayan fi Madhhab al-Imam al-Shafi`i by `Imrani (5/93) and Hilyat al-`Ulama’ by al-Qaffal (4/104). and Hanbalis [1801] According to the Hanbalis, it is valid if both parties to the transaction either know or do not know the amount, but if only the seller knows the amount, then it is forbidden, but the sale is valid. Kashshaf al-Qina` by Bahuti (3/169) and Sharh Muntaha al-Iradat by Bahuti (2/16). – and the view of a group of the predecessors. [1802] Ibn `Abd al-Barr said: “Those who took the view that it is permissible for a person to sell food, even if he knows its quantity, by estimation to someone who does not know its exact quantity included Shafi`i, Abu Hanifah and his companions, Thawri, al-Hasan ibn Hayy, Dawud, Ahmad ibn Hanbal, and Tabari, and it was also related from al-Hasan al-Basri with some difference of opinion.” Al-Tamhid (13/341).

Evidences:

Firstly, from the Book:

The Statement of Allah Exalted: “Allah has permitted trading.” [1803] al-Baqarah, 275.

Every type of trade is permissible according to the apparent meaning of this verse, unless there is a specific prohibition against it from the Sunnah, and there is no such prohibition against this practice. Furthermore, the permissibility of trading food by estimation has been related in the Sunnah. [1804] See Al-Tamhid (13/341).

Secondly, because if trade is permissible with both parties not knowing the quantity, then it is even more appropriate for it to be permissible with one of them knowing. [1805] See Al-Mughni by Ibn Qudamah (4/95).

And thirdly, the seller’s knowledge of the commodity’s quantity does not constitute deception, so it is permissible. [1806] See Al-Tamhid by Ibn `Abd al-Barr (13/341).

Secondly: The trade of a share in jointly owned property (musha`) [1807] Musha` refers to what contains shares, such as a half, quarter, sixth, or tenth, and other proportional shares applicable to each part of the wealth, whether movable or immovable. The terms ‘musha`’ and ‘sha’i`’ are used interchangeably and refer to the undivided common share. The musha` trade is the same as the sharik trade and involves selling the partner’s share or portion of the wealth, such as land. See Durar al-Hukkam by `Ali Haydar (1/119).

The trade of a share in undivided property is permissible, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [1808] Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (5/126) and Al-Bahr al-Ra’iq by Ibn Nujaym (5/315). Malikis, [1809] Sharh al-Zurqani `ala Mukhtasar Khalil wa Hashiyat al-Banani (5/423). See also Al-Muntaqa Sharh al-Muwatta’ by Baji (5/249). Shafi`is, [1810] Al-Majmu` by Nawawi (9/256) and Nihayat al-Muhtaj by Ramli (5/278). and Hanbalis, [1811] Kashshaf al-Qina` by Bahuti (3i/170) and Sharh Muntaha al-Iradat by Bahuti (2/433). and a consensus is reported to that effect. [1812] Ibn al-Mundhir said: “The scholars unanimously agree that the trade of jointly owned property is permissible, and the transfer of possession involves the buyer’s relinquishment of the jointly owned thing.” Al-Awsat (12/14). Ibn Hazm said: “They do not differ in the permissibility of selling a jointly owned commodity, whether it is divisible or indivisible and whether it is being sold to the co-owner or someone else.” Al-Muhalla bi al-Athar (6/364). Nawawi said: “The trade of jointly owned property is permissible, whether it is a share in a slave, an animal, a garment, wood, land, a tree, or anything else, without any disagreement. This includes both divisible and indivisible items, such as a share in a slave or an animal, and there is a consensus on this matter.” Al-Majmu` (9/256). Ibn Taymiyyah said: “The trade of jointly owned property is permissible by the consensus of Muslims, as established by the Sunnah of the Messenger of Allah g.” Majmu` al-Fatawa (29/233). Ibn al-Humam said: “The sha’i` trade is permissible by consensus.” Fath al-Qadir (6/275). Ibn Nujaym said: “The sha’i` trade is permissible by consensus.” Al-Bahr al-Raqa’iq (5/315). Some difference of opinion on the matter has been recorded. Ibn Hazm said: “`Abd al-Malik ibn Ya`la, who was a judge of Basra from the Followers, said that the trade of jointly owned property is not permissible. This was related to us through the chain of Hammad ibn Zaid, [who narrated] that Ayyub al-Sakhtiyani said: ‘A man who sold a share that was not divided was brought before Abd al-Malik ibn Ya`la, and he did not permit it. This was mentioned to Muhammad ibn Sirin, and he also considered it not permissible.’” Al-Muhalla bi al-Athar (8/3).

Evidences:

Firstly, from the Sunnah:

Jabir ibn `Abdillah k narrated: “The Messenger of Allah g said: ‘There is a right of pre-emption in jointly owned property, whether it is land, a dwelling, or a garden. It is not appropriate for one of the owners to sell their share until they inform their partner, who may take or refuse the same price for their share. If they (i.e., the partner wishing to sell) do not do that (i.e., inform their partner), then their partner has a greater right to it (i.e., to buy the share at the price it is being sold at) until they grant their partner permission.” [1813] Reported by Muslim (1608).

The ruling of the Messenger of Allah g on the right of pre-emption in joint property after the completion of a trade is evidence of the permissibility of selling undivided shares. [1814] See Al-Tamhid by Ibn `Abd al-Barr (7/50) and Al-Sharh al-Mumti` by Ibn `Uthaymin (9/130).

`Abdullah ibn `Umar k narrated that the Messenger of Allah g said: “Whoever manumits his share of a slave and possesses money equivalent to the whole price of that slave should ask a just man to assess his value, give his partners in owning the slave their shares, and then manumit the slave completely. If not, then at least he has manumitted the portion he manumitted.” [1815] Reported by Bukhari (2522).

Thirdly: The down payment (`urbun) trade

1. Defining the “down payment” trade

Linguistically: One may say “he a`raba in his trade”, meaning “he gave the down payment”, and “`arraba” and “`arabna” have the same meaning. The `urbun trade was thus named because it clarifies (a`raba) the sales contract; i.e., it rectifies the agreement, removes defects, and holds onto it so that no-one else can take possession of it. There are six ways of expressing “`urbun”: “`arabun”, “`urbun”, and “`urban”, and then with a hamzah instead of the `ayn for each of the three, “arabun”, “arbun”, and “arban”. [1816] See Al-Nihayah by Ibn al-Athir (3/202), Al-Fa’iq fi Gharib al-Hadith by Zamakhshari (2/410), Lisan al-`Arab by Ibn Manzur (13/175, 284), and Al-Mutli` `ala Alfaz al-Muqni` by Ba`li, p. 279.

Technically: It is when a buyer purchases goods and pays the seller a sum of money. If the buyer takes the goods, this amount is considered part of the total price. If the buyer decides not to take the goods, the down payment belongs to the seller. [1817] See Al-Mughni by Ibn Qudamah (4/175) and Minhaj al-Talibin by Nawawi, p. 98.

2. The ruling on the down payment trade

The down payment trade is permissible, [1818] The Hanbalis, Islamic Fiqh Academy, and Jordanian Department of Religious Rulings stipulated that the waiting period be limited to a specified duration. and this was the position of the Hanbalis, [1819] Al-Insaf by Mardawi (4/258) and Matalib ‘Uli al-Nuha by Rahibani (3/78). the view of some of the predecessors, [1820] It was the opinion of `Umar ibn al-Khattab and Ibn `Umar k, Ibn Sirin, Sa`id ibn al-Musayyib, and Mujahid. See Musannaf ibn Abi Shaybah (5/7, nos. 23197 and 23198), Al-Mughni by Ibn Qudamah (4/175), and Al-Majmu` by Nawawi (9/335). the preferred opinion of the Islamic Fiqh Academy, [1821] The decision of the Islamic Fiqh Academy no. 76 (3/8d), on the topic of “the down payment trade”, stated the following: “All praise and gratitude is for Allah, the Lord of all worlds, and may blessings and salutations be upon our master Muhammad, the Seal of the Prophets, and upon his family and companions.   Decision no. 76 (3/8d), on the topic of “the down payment trade”.   The assembly of the Islamic Fiqh Academy, convened during its eighth session in Bandar Seri Begawan, Brunei Darussalam, from 1-7 Muharram 1414 AH / 21-27 June 1993 CE.   After reviewing the research submitted to the assembly on the topic of ‘the down payment trade’ and after listening to the discussions surrounding it, the Academy decided the following:   1.      The meaning of ‘the down payment trade’: It is the sale of a commodity with the buyer paying an amount of money to the seller. If the buyer takes the commodity, the amount is considered part of the price. If the buyer abandons it, the amount belongs to the seller. The transaction follows the pattern of a lease because it involves the sale of benefits. Excluded from sales are anything that requires the acceptance of one of the two alternatives in the contract meeting (offer and acceptance) or the exchange of currencies and their transactions. It does not apply to the stipulated return in the murabahah contract for the buying party in the commitment phase but applies to the subsequent selling phase.   2.      The down payment trade is permissible if the waiting period is limited, and the down payment is considered part of the price if the purchase is completed. It is the right of the seller if the buyer backs out of the purchase...”   Majallah Majma` al-Fiqh al-Islami al-Dawli – al-Dawrat al-Thaminah (1/793). Ibn Baz, [1822] Ibn Baz said: “There is no harm in taking a down payment, according to the stronger opinion among scholars, when both the seller and the buyer agree to it and the actual trade has not been completed.” Majmu` Fatawa Ibn Baz (19/63). and Ibn `Abd al-Barr, [1823] Ibn `Uthaymin said: “So, the predominant opinion in this matter - and it is what people generally follow today - is that there is no harm in a down payment because it is a benefit for both parties. It does not fall under the category of forbidden speculation, because in speculation, one party gains while the other loses. In this case, there is no element of loss; the seller is a gainer, as he says, ‘If the sale is completed, it is yours, and if not, I have earned the down payment.’” Fath Dhi al-Jalal wa al-Ikram bi Sharh Bulugh al-Maram (3/561). and was the basis of the rulings of the Permanent Committee in Saudi Arabia [1824] The verdict of the Permanent Committee stated: “The ‘down payment trade’ is permissible. It involves the buyer paying the seller or their agent an amount of money less than the selling price after the completion of the sale contract to secure the sale, preventing others from taking it. If the buyer takes possession of the goods, this down payment is considered part of the price. If the buyer does not take possession, the seller is entitled to keep and take ownership of the down payment. The down payment trade is valid, whether a specific time for paying the remaining amount is stipulated or not. After the completion of the sale and receiving the payment, the seller is obligated to deliver the goods.”. Fatawa al-Lajnah al-Da’imah – First assembly (13/133). and the Jordanian Department of Religious Rulings [1825] Their verdict included: “According to our view, the down payment trade is permissible, and the down payment made by the buyer is considered part of the price if the sale is finalized. Otherwise, it belongs to the seller if the buyer backs out of the purchase, provided that a specific period of time is agreed upon by both parties. This falls under the option of stipulation, and Allah knows best.” The Official Website of the Jordanian Department of Religious Rulings. . This is because it serves the interests of both parties, and there is no harm involved. The seller gains because they say that if the trade is completed, then the commodity is for the buyer, and if not then they have at least gained from the down payment. [1826] See Fath Dhi al-Jalal wa al-Ikram bi Sharh Bulugh al-Maram by Ibn `Uthaymin (3/561).

Fourthly: The `araya trade

1. Defining “the `araya trade”

Linguistically: An `ariyyah is a date palm whose owner lends it to someone else to eat from its fruits. A date palm is said to be `ari when it is subject to that, and the plural is `araya. [1827] See Al-Misbah al-Munir by Fayumi (2/406) and Taj al-`Arus by Zabidi (39/33).

Technically: It is the sale of fresh dates atop palm trees in exchange for its estimated equivalent in dried dates, in a quantity of less than five awsuq, to a person who wishes to eat fresh dates but does not have the price to purchase them. [1828] This is the definition of the Hanbalis. See Al-Insaf by Mardawi (5/26), Muntaha al-Iradat by Ibn al-Najjar (2/351) and Al-Iqna` by Hajawi (2/117). The Shafi`is define it as the sale of unripe dates on a palm tree for a specific quantity of dates on the ground, measured by weight, or the sale of unripe grapes on a vine for a specific quantity of raisins on the ground, measured by weight. See Mughni al-Muhtaj by Shirbini (2/93). The Malikis define ‘`ariyyah’ as the act of a person gifting another person the produce of a palm tree or trees, or the fruits of fig or olive trees, or a vineyard of grapes. The giver hands over these fruits or the vineyard to the recipient, and then the giver expresses the intention to buy back that produce from the recipient. See Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/654).

2. The ruling on the `araya trade [1829] This type of trade is rare nowadays because of the wide availability of currency.

The `araya trade is permissible, and this was the position of the majority – the Malikis, [1830] Based on their definition. Al-Taj wa al-Iklil by Mawwaq (4/502) and Minah al-Jalil by `Ulaysh (5/296). Shafi`is, [1831] Mughni al-Muhtaj by Shirbini (2/93). Hanbalis, [1832] Al-Insaf by Mardawi (5/27) and Kashshaf al-Qina` by Bahuti (3/258). and some of the Hanafis [1833] See Al-Bahr al-Ra’iq by Ibn Nujaym (6/83). and Zahiris [1834] Ibn Hazm said: “The trade of fresh and ripe dates is permissible with anything that is permissible to trade – apart from what we have mentioned – whether in cash, with dirhams or dinars, and whether in cash or on credit, except for `araya with ripe dates. This is when the ripe dates arrive and there are people who want to buy them for consumption, in which case it is permitted for them to buy them directly from the tops of the palm trees in exchange for an estimated equivalent of dried dates, so long as it is less than five awsuq, which is given to the owner of the ripe dates as payment. It is not permissible to delay the payment, and this must not happen. It is also not permissible for transactions involving five awsuq or more, neither is it allowed for the ripe dates to be exchanged for less or more than their estimated equivalent in dried dates.” Al-Muhalla bi al-Athar (7/389). Shawkani attributed this view to the Zahiris. See Nayl al-Awtar (5/239). – and was the preferred opinion of Ibn Taymiyyah [1835] Ibn Taymiyyah said: “Some things are permissible in times of need but otherwise are not. For example, the `araya trade is permissible.” Majmu` al-Fatawa (29/480). Ibn al-Qayyim, [1836] Ibn al-Qayyim said: “Trading fresh dates for dried dates was made impermissible for them, but from it, the `araya trade was made permissible for them.” I`lam al-Muqi`in (2/113). He also said: “So, we adhere to the narration that prohibits trading dried dates for dried dates as a distinct case. We also adhere to the hadith that prohibits selling fresh dates with dried dates without any specification, and we adhere to the hadith about `araya and consider it a specific exception to the general prohibition of trading fresh dates for dried dates.” I`lam al-Muqi`in (2/237). San`ani, [1837] San`ani said, in his explanation of the narration, “Permission was granted for `ariyyah, where the people of the household can take them by estimation as dried dates and eat them as fresh dates”: “Permission, in its essence, means facilitation and easing. In the legal context, it refers to the legislated rulings permitted due to a valid excuse, while the evidence for affirmation and prohibition remains, were it not for that excuse. This is evidence that the ruling regarding `araya transactions is an exception lifted from among the prohibited acts, specified by its own ruling. This exception was explicitly mentioned in the hadith narrated by Jabir, as reported Bukhari with the wording: ‘The Messenger of Allah g prohibited selling fruits until they ripen, and nothing should be sold from them except for dinars and dirhams, except for ‘`araya’, In his statement ‘in the `araya’ there is an attributive phrase omitted, meaning, ‘in the sale of the fruits of `araya’, as `araya refers to the date palm.” Subul al-Salam (2/62). He also said: “There is a consensus among the majority that the permission for `araya transactions is valid. This involves selling fresh dates on the tops of the palm trees, equivalent to their weight in dried dates, as an immediate transaction for less than five awsuq, on the condition of mutual agreement. We specifically mentioned ‘less than five awsuq’ based on the narration of Abu Hurayrah.” Subul al-Salam (2/63). Shawkani, [1838] Shawkani said, in his explanation of the narration, “Permission was granted for `ariyyah, where the people of the household can take them by estimation as dried dates and eat them as fresh dates”: “This is permissible, and the one who informed us about the prohibition of usury and forbade us from engaging in muzabanah transactions is the same who granted us permission for `araya transactions. All aspects are valid, with clear legal rulings and established Sunnah. Whoever opposes this has exposed himself to the refutation specific to knowledge, the refutation of permission with determination, and the refutation of Sunnah with mere opinion. Similarly, one who prohibits selling while permitting gifts, as narrated from Abu Hanifah, is subject to the condition that the purchase is made with one or two awsuq, or three or four, as mentioned in the narration of Jabir which was reported by Shafi`i and Ahmad and authenticated by Ibn Khuzaymah, Ibn Hibban, and Hakim. Therefore, purchasing with an excess beyond that is not permissible.” Al-Sayl al-Jarrar, p. 514. He also said: “The intended meaning is that the Prophet g granted permission to the impoverished individuals who do not own date palms, allowing them to purchase unripe dates from the owners of the palm trees. They can then consume these dates in the trees with their unripe state, taking them by giving dried dates in exchange. ‘`Araya’ is the plural of ‘`ariyyah’, which essentially refers to the gift of the dates without the inclusion of the stalk. The majority agrees with this interpretation, and those who disagree are refuted by the narrations.” Al-Darari al-Mudiyyah (2/262). Ibn Baz, [1839] Ibn Baz said: “`Araya refers to the situation where a person is in need of fresh dates but lacks money. They can then purchase dates from someone who owns palm trees, paying with the unripe dates on the trees by giving ripe dates in return, transferring them directly hand to hand. This is a specific concession based on people’s need for fresh dates when they lack funds. In such cases, one can take the dates by giving dried dates in return, and the buyer can eat them while still unripe. This concession is applicable when the quantity is five awsuq or less, meaning less than five awsuq, because the uncertainty makes five impermissible. A wasq is sixty sa`, so `araya transactions involve quantities of less than 300 sa`, and there is no harm in that. Each unit is referred to as an ‘`ariyyah’, and the ‘`ariyyah’ is the one bought with its unripe dates by giving ripe dates in return, and these dates are on the tops of the palm trees.” The Official Website of Shaykh Ibn Baz. and Ibn `Uthaymin, [1840] Ibn `Uthaymin said: “‘`Araya’ refers to a situation where a person has dried dates from the previous year and the ripe dates of this year have arrived. He wishes to enjoy the fresh dates, but he does not have any dirhams, possessing only the dried dates from the year before. In such a case, the Shariah permits buying fresh dates with dried dates and names it ‘`araya’, derived from the ‘waiving’ of its actual price. So, the needy man with dried dates from the previous year comes to the owner of the orchard and says: ‘Sell me the dates of this palm tree – the ones that are currently fresh – in exchange for dried dates.’ This is permissible because of the calling of his need for the dates, for this needy man desires to enjoy fresh dates just as the people desire, but he does not have any dirhams. Therefore, he can buy the fresh dates directly from the tops of the palm trees in exchange for the dried dates, according to certain conditions:   The first condition: The buyer should not have any means to purchase other than the specified dried dates. If the buyer has other means such as dirhams, clothing, animals, or similar, then it is not permissible for him to buy ripe dates with dried dates.   The second condition: The quantity should be less than five awsuq, and one wasq is equal to sixty sa`. So, the total quantity should be less than three hundred sa`.   The third condition: The value of the fresh dates should be equivalent to the dried dates. A knowledgeable and skilled person should confirm that when the fresh dates dry, they will be equal in value to the dried dates purchased.   The fourth condition: The buyer must genuinely need the fresh dates, meaning that he desires them for consumption and enjoyment, and not be intending to keep them until they dry. This is to prevent a scenario where someone might say they want to buy fresh dates but intends to keep them until they dry and increase in value.   The fifth condition: The fresh dates must be on the palms of the palm trees. If the owner of the orchard has already harvested the dates and presented them for sale, it is not permissible for a poor person to offer dried dates in exchange for fresh ones.   If all these conditions are met, the transaction is permissible according to the Shariah.” Al-Sharh al-Mumti` (8/419). and the view of most people of knowledge. [1841] Ibn al-Mundhir said: “The majority of scholars stated that this type of sale is permissible. They considered it an exception from the general prohibition mentioned in the hadith of the Prophet g concerning selling fresh dates for fresh dates, selling fresh dates for dried dates, and engaging in muzabanah transactions. This was the opinion of Malik ibn Anas and those who followed him from the people of Madinah, as well as Awza`i and those who agreed with him in the Levant. This was also the view of Shafi`i and his companions, Ahmad ibn Hanbal, Ishaq ibn Rahawayh, Abu `Ubayd, and those who followed them among the scholars.” Al-Awsat (10/75, 76). See also Al-Mughni by Ibn Qudamah (4/45).

Evidences:

Firstly, from the Sunnah:

Sahl ibn Abi Hathmah narrated that the Messenger of Allah g forbade the selling of fruits (i.e., fresh dates) in exchange for dried dates, but permitted `ariyyah by estimation so that their new owners could eat the dates fresh. [1842] Reported by Bukhari (2191) and Muslim (1540). The wording here is from Bukhari.

The Messenger of Allah g granted a concession for selling unripe dates, and a concession implies the permissibility of what is generally prohibited, given the presence of a compelling reason. If this reason is removed, the concession would no longer be applicable, and we would not have a concession under those circumstances. [1843] See Al-Mughni by Ibn Qudamah (4/45).

And secondly, if there is a perceived contradiction between the narration prohibiting the exchange of fruits for fruits and the narration granting permission for the sale of `araya, it is necessary to prioritise the narration granting permission for `araya due to its specificity. This involves reconciling between the two narrations and acting upon both texts. [1844] See Al-Mughni by Ibn Qudamah (4/45).

3. Prerequisites for the trade of `araya

For the measure to be less than five awsuq

It is a prerequisite for a valid `araya trade for the measure to be less than five awsuq, and this was the position of the Shafi`is, [1845] Rawdat al-Talibin by Nawawi (3/563) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/472). Hanbalis, [1846] Al-Insaf by Mardawi (5/28) and Kashshaf al-Qina` by Bahuti (3/259). Zahiris, [1847] Ibn Hazm said: “The trade of fresh and ripe dates is permissible with anything that is permissible to trade – apart from what we have mentioned – whether in cash, with dirhams or dinars, and whether in cash or on credit, except for `araya with ripe dates. This is when the ripe dates arrive and there are people who want to buy them for consumption, in which case it is permitted for them to buy them directly from the tops of the palm trees in exchange for an estimated equivalent of dried dates, so long as it is less than five awsuq, which is given to the owner of the ripe dates as payment. It is not permissible to delay the payment, and this must not happen. It is also not permissible for transactions involving five awsuq or more, neither is it allowed for the ripe dates to be exchanged for less or more than their estimated equivalent in dried dates.” Al-Muhalla bi al-Athar (7/389). Shawkani attributed this view to the Zahiris. See Nayl al-Awtar (5/239). Ibn al-Mundhir, [1848] Ibn al-Mundhir said: “It is not permissible to make an exception to the prohibition of the Messenger of Allah g against selling dried dates for dried dates except with certainty. Selling less than five awsuq is permissible because it is based on certainty, but selling exactly five awsuq is not, because there is an element of doubt, and it is not permissible to make an exception to the prohibition of the Messenger of Allah g against selling dried dates for dried dates based on doubt.” Al-Ishraf (6/32). San`ani, [1849] San`ani said: “The consensus of the majority is concession for the `araya trade is permissible. This is when ripe dates on top of date palm trees are traded for an estimated equivalent quantity of dried dates, so long as the quantity is less than five awsuq, with the condition of a reciprocal transfer of possession. We say less than five awsuq based on the narration of Abu Hurayrah, ‘that the Messenger of Allah g permitted the trade of `araya for their estimated equivalent in dates, so long as it was less than five awsuq’, which was agreed upon (i.e., its authenticity was agreed upon by Bukhari and Muslim). Abu Hurayrah h also narrated ‘that the Messenger of Allah g permitted the trade of `araya for their estimated equivalent in dates, so long as it was less than – or equal to – five awsuq.’ This narration was also agreed upon. Muslim explained that the confusion in the narration was from Dawud ibn al-Husayn. Shafi`i and Malik agreed regarding its permissibility for quantities below five awsuq and its prohibition for quantities above five awsuq, but they disagreed regarding exactly five awsuq. The stronger opinion is that exactly five awsuq is prohibited, based on the narration of Jabir: ‘I heard the Prophet g saying, when he gave permission to the people of `araya, that they (i.e., the ripe dates) should be exchanged for their estimated equivalent. He said: “A wasq, two wasqs, three, and four.”’ This narration was reported by Ahmad, and Ibn Hibban recorded it under the description: ‘Be careful not to exceed four awsuq.’” Subul al-Salam (3/45). and Ibn Baz, [1850] Ibn Baz said: “For `araya, there is no harm in exchanging the fruits with their estimated equivalent in dried dates, because in times of need, estimation stands in for measurement. Therefore, if someone sells the fruits on the tops of dates palm trees as ripe dates in exchange for their estimated equivalent in dried dates in response to the buyer’s urgent need to enjoy ripe dates, there is no harm in that. This is an exception and is allowed only for `araya, and it must be in a quantity less than five awsuq, as mentioned in the narration of Abu Hurayrah: ‘He permitted the trade of `araya for their estimated equivalent in dates, so long as it was less than – or equal to – five awsuq.’ There was some doubt from one of the narrators, so for that reason we say: ‘It must be less than five awsuq, acting upon what is certain.’” Al-Ifham fi Sharh `Umdat al-Ahkam, p. 532. one of the two views held by Ibn `Uthaymin, [1851] Ibn `Uthaymin said: “There is some doubt over whether the narration specifies exactly five awsuq or less than five awsuq. There are three possibilities: it could be [referring to transactions involving] less [than five awsuq], more [than five awsuq], or exactly five [awsuq]. As for transactions involving less than five awsuq, there is no doubt that the narration addresses them. As for transactions involving more than five awsuq there is no doubt that the narration indicates their prohibition. However, for transactions involving exactly five awsuq there is uncertainty. What is the fundamental principle in such cases? The principle is to treat the doubtful matter based on what is certain. In this case, what is certain is that trading ripe dates for dried dates is not permissible. What remains uncertain is transactions involving exactly five awsuq: are they permissible or not? The default position is that they are prohibited, so we adhere to the third stipulation: that the transaction should involve less than five awsuq. Therefore, there are now three conditions: they (i.e., the ripe dates) should be traded for their estimated equivalent [in dried dates], they should be consumed as ripe dates, and they should be less than five awsuq [in quantity].” Fath Dhi al-Jalal wa al-Ikram bi Sharh Bulugh al-Maram (4/54). and San`ani attributed it to the majority. [1852] San`ani said: “The majority agreed on the permissibility of the concession for the `araya trade.” Subul al-Salam (3/45).

Evidences:

Firstly, from the Sunnah:

Bushayr ibn Yasar Mawla Bani Harithah said that Rafi` ibn Khadij and Sahl ibn Abi Hathmah narrated to him that the Messenger of Allah g forbade muzabanah – exchanging fruits (i.e., fresh dates) for dried dates – except for the people of `araya, for he had granted permission to them. [1853] Reported by Bukhari (2383, 2384) and Muslim (1540). The wording here is from Muslim.

Abu Hurayrah h narrated that the Prophet g permitted the trade of `araya for measures of five awsuq or less. [1854] Reported by Bukhari (2190) and Muslim (1541).

The Prophet g forbade muzabanah, which is exchanging fresh dates for dried dates, and then permitted `ariyyah for measure of less than five awsuq. The narrator of the hadith was uncertain regarding five awsuq, so it remains under the general ruling of impermissibility. [1855] See Al-Mughni by Ibn Qudamah (4/45).

Secondly, five awsuq falls under the ruling of measures greater than it because zakat is obligatory upon it, whereas it is not for lower amounts. Since zakat is payable upon such an amount, it is not permissible to sell them as `ariyyah. [1856] See Al-Mughni by Ibn Qudamah (4/46).

And thirdly, because the concession for `ariyyah is unquestionably proven for quantities less than five. Five is uncertain, so its permissibility is not established beyond doubt. [1857] See Al-Mughni by Ibn Qudamah (4/45, 46).

For the tree to have been gifted to its seller in the trade of `araya

It is not a prerequisite for the tree to have been gifted to its seller in the trade of `araya, and this is the position of the Shafi`is [1858] Takmilat Al-Majmu` Sharh al-Muhadhdhhab by Subki (11/17, 31). and Hanbalis [1859] Al-Furu` by Ibn Muflih (6/304) and Kashshaf al-Qina` by Bahuti (3/259). See also Al-Mughni by Ibn Qudamah (4/47). and is indicated by the statements of Ibn al-Mundhir, [1860] Ibn al-Mundhir said, in his explanation of the meaning of `araya: “They differed in their interpretations of the term `araya. Abu `Ubayd said: ‘`Araya has two interpretations.’ Malik used to say: “It refers to a date palm tree whose fruits its owner donates to a person in need. The owner leaves the tree without harvesting its fruits and lets the recipient pick them. The challenge is that this may inconvenience the recipient in accessing the tree, so the Prophet g granted permission for the recipient to buy the fruits of that tree from the donor with an estimated equivalent of dried dates as payment.”   As for the other interpretation, it is that `araya refers to dates palm trees that the owner excludes from his orchard when selling the rest of his fruits. They are not included in the sale, and instead, the owner keeps them for himself and his family. The Prophet g granted permission for people in need and poverty who do not possess any currency or gold but do possess dried dates to purchase the fruits of these `araya in exchange for an estimated equivalent of their dried dates. The Prophet g did this as an act of compassion towards the economically disadvantaged who could not ripe fresh dates. Abu Bakr said: “This interpretation is more accurate in meaning than the first.”’” Al-Ishraf (6/33). Ibn Hazm, [1861] Ibn Hazm said: “The trade of fresh and ripe dates is permissible with anything that is permissible to trade – apart from what we have mentioned – whether in cash, with dirhams or dinars, and whether in cash or on credit, except for `araya with ripe dates. This is when the ripe dates arrive and there are people who want to buy them for consumption, in which case it is permitted for them to buy them directly from the tops of the palm trees in exchange for an estimated equivalent of dried dates, so long as it is less than five awsuq, which is given to the owner of the ripe dates as payment. It is not permissible to delay the payment, and this must not happen. It is also not permissible for transactions involving five awsuq or more, neither is it allowed for the ripe dates to be exchanged for less or more than their estimated equivalent in dried dates.” Al-Muhalla bi al-Athar (7/389). Ibn Taymiyyah, [1862] Ibn Taymiyyah said: “Some things are permissible in times of need but otherwise are not. For example, the `araya trade is permissible.” Majmu` al-Fatawa (29/480). Ibn al-Qayyim, [1863] Ibn al-Qayyim said: “Trading fresh dates for dried dates was made impermissible for them, but from it, the `araya trade was made permissible for them.” I`lam al-Muqi`in (2/113). He also said: “So, we adhere to the narration that prohibits trading dried dates for dried dates as a distinct case. We also adhere to the hadith that prohibits selling fresh dates with dried dates without any specification, and we adhere to the hadith about `araya and consider it a specific exception to the general prohibition of trading fresh dates for dried dates.” I`lam al-Muqi`in (2/237). San`ani, [1864] San`ani said, in his explanation of the narration, “Permission was granted for `ariyyah, where the people of the household can take them by estimation as dried dates and eat them as fresh dates”: “Permission, in its essence, means facilitation and easing. In the legal context, it refers to the legislated rulings permitted due to a valid excuse, while the evidence for affirmation and prohibition remains, were it not for that excuse. This is evidence that the ruling regarding `araya transactions is an exception lifted from among the prohibited acts, specified by its own ruling. This exception was explicitly mentioned in the hadith narrated by Jabir, as reported Bukhari with the wording: ‘The Messenger of Allah g prohibited selling fruits until they ripen, and nothing should be sold from them except for dinars and dirhams, except for ‘`araya’, In his statement ‘in the `araya’ there is an attributive phrase omitted, meaning, ‘in the sale of the fruits of `araya’, as `araya refers to the date palm.” Subul al-Salam (2/62). He also said: “There is a consensus among the majority that the permission for `araya transactions is valid. This involves selling fresh dates on the tops of the palm trees, equivalent to their weight in dried dates, as an immediate transaction for less than five awsuq, on the condition of mutual agreement. We specifically mentioned ‘less than five awsuq’ based on the narration of Abu Hurayrah.” Subul al-Salam (2/63). Shawkani, [1865] Shawkani said: “The intended meaning is that the Prophet g granted permission to the impoverished individuals who do not own date palms, allowing them to purchase unripe dates from the owners of the palm trees. They can then consume these dates in the trees with their unripe state, taking them by giving dried dates in exchange. ‘`Araya’ is the plural of ‘`ariyyah’, which essentially refers to the gift of the dates without the inclusion of the stalk. The majority agrees with this interpretation, and those who disagree are refuted by the narrations.” Al-Darari al-Mudiyyah (2/262). Ibn Baz, [1866] Ibn Baz said: “`Araya refers to the situation where a person is in need of fresh dates but lacks money. They can then purchase dates from someone who owns palm trees, paying with the unripe dates on the trees by giving ripe dates in return, transferring them directly hand to hand. This is a specific concession based on people’s need for fresh dates when they lack funds. In such cases, one can take the dates by giving dried dates in return, and the buyer can eat them while still unripe. This concession is applicable when the quantity is five awsuq or less, meaning less than five awsuq, because the uncertainty makes five impermissible. A wasq is sixty sa`, so `araya transactions involve quantities of less than 300 sa`, and there is no harm in that. Each unit is referred to as an ‘`ariyyah’, and the ‘`ariyyah’ is the one bought with its unripe dates by giving ripe dates in return, and these dates are on the tops of the palm trees.” The Official Website of Shaykh Ibn Baz. and Ibn `Uthaymin. [1867] Ibn `Uthaymin said: “The Shariah has permitted some matters related to usury for the sake of wellbeing or benefit, such as the `araya trade.” Al-Sharh al-Mumti` (6/115). He also said: “‘`Araya’ refers to a situation where a person has dried dates from the previous year and the ripe dates of this year have arrived. He wishes to enjoy the fresh dates, but he does not have any dirhams, possessing only the dried dates from the year before. In such a case, the Shariah permits buying fresh dates with dried dates and names it ‘`araya’, derived from the ‘waiving’ of its actual price. So, the needy man with dried dates from the previous year comes to the owner of the orchard and says: ‘Sell me the dates of this palm tree – the ones that are currently fresh – in exchange for dried dates.’ This is permissible because of the calling of his need for the dates, for this needy man desires to enjoy fresh dates just as the people desire, but he does not have any dirhams. Therefore, he can buy the fresh dates directly from the tops of the palm trees in exchange for the dried dates.” Al-Sharh al-Mumti` (8/419).

Evidences:

Firstly, from the Sunnah:

Sahl ibn Abi Hathmah narrated that the Messenger of Allah g forbade the selling of fruits (i.e., fresh dates) in exchange for dried dates, but permitted `ariyyah by estimation so that their new owners could eat the dates fresh. [1868] Reported by Bukhari (2191) and Muslim (1540). The wording here is from Bukhari.

His statement, “but permitted `ariyyah by estimation”, indicates its permissibility in general without a donator. [1869] See Al-Mughni by Ibn Qudamah (4/45, 47).

Secondly, because what is permissible to be sold if it is gifted is permissible if it is not gifted, as is the case with other forms of wealth, and what is permissible to be sold to the donor is permissible to be sold to someone else, as is the case with other types of wealth. [1870] See Al-Mughni by Ibn Qudamah (4/47).

Thirdly, because the reason for the concession is that the buyer is in need of eating fresh dates and has nothing to pay with except dried dates. Therefore, when this is the case, the sale becomes permissible. [1871] See Al-Mughni by Ibn Qudamah (4/47).

And fourthly, because requiring the tree to be gifted whilst also stipulating the buyer’s desire for eating fresh dates without having anything to pay with except fresh dates would lead to nullifying the concession, as these conditions are rarely found in conjunction. [1872] See Al-Mughni by Ibn Qudamah (4/47).

For the `araya trade to be in exchange for an estimated equivalent of dried dates [1873] It is a condition of the `araya trade that the ripe dates on the palm, when dried, be equal to the dried dates that are given as payment. For example, if the ripe dates from the palm tree would equal one hundred sa` when dried, then they should be exchanged for one hundred sa` of dried dates.

It is a prerequisite for the `araya trade to be in exchange for an estimated equivalent of dried dates, and this was the position of the majority – the Malikis, [1874] Based on their definition. Al-Taj wa al-Iklil by Mawwaq (4/502) and Hashiyat al-`Adawi `ala Kifayat al-Talib al-Rabbani (2/221). Shafi`is, [1875] Rawdat al-Talibin by Nawawi (3/563) and Mughni al-Muhtaj by Shirbini (2/93). and Hanbalis [1876] Al-Insaf by Mardawi (5/28) and Kashshaf al-Qina` by Bahuti (3/258, 259). – and the preferred opinion of Ibn al-Mundhir, [1877] Ibn al-Mundhir said: “For the ripe dates to be sold for their estimated equivalent is a condition of the `araya trade, and this is an exception from the general prohibition against trading dates for dates. It is only permissible to sell from the `araya in quantities less than five awsuq.” Al-Iqna` (10/260). Ibn Hazm, [1878] Ibn Hazm said: “The trade of fresh and ripe dates is permissible with anything that is permissible to trade – apart from what we have mentioned – whether in cash, with dirhams or dinars, and whether in cash or on credit, except for `araya with ripe dates. This is when the ripe dates arrive and there are people who want to buy them for consumption, in which case it is permitted for them to buy them directly from the tops of the palm trees in exchange for an estimated equivalent of dried dates, so long as it is less than five awsuq, which is given to the owner of the ripe dates as payment. It is not permissible to delay the payment, and this must not happen. It is also not permissible for transactions involving five awsuq or more, neither is it allowed for the ripe dates to be exchanged for less or more than their estimated equivalent in dried dates. If what we mentioned as being impermissible were to occur, then the transaction would be rendered void forever, and it would be included in the prohibition against [unlawful] seizure.” Al-Muhalla bi al-Athar (7/389). Ibn Taymiyyah, [1879] Ibn Taymiyyah said: “If the Prophet g prohibited the muzabanah trade – which is trading fresh dates for dried dates on the palm – due to the resemblance to usurious transactions caused by its estimated nature – and the issue of usury is more severe than the issue of gambling – then he allowed, out of necessity, for the `araya to be traded for their estimated equivalent.” Majmu` al-Fatawa (30/234). Shawkani, [1880] Shawkani said: “The intended meaning is that the Prophet g permitted the poor who have no date palms to purchase ripe dates still on the trees from the owners of date palms for consumption, using their estimated equivalent of dried dates as payment. ‘`Araya’ is the plural of ‘`ariyyah’, which originally refers to the customary gift of the fruits of the palm tree [given to those without date palms of their own], excluding the head of the date bunch. This view is agreed upon by the majority, and those who oppose it are refuted by the narrations on the topic.” Al-Darari al-Mudiyyah (2/262). Ibn Baz, [1881] Ibn Baz said: “The meaning is that there is no harm in `araya transactions for quantities of less than 300 sa`, according to the sa` of the Prophet g. This happens when a person has dried dates but does not have cash – cash being the thing that is usually easiest to purchase with – so he purchases the fruits of one or two palm trees in exchange for their estimated equivalent. The person delivers dried dates in exchange for the fruits of the palm. For example, if they estimate [the fresh dates on] the palm as twenty sa', then he will give him twenty sa` of dried dates. If they estimate it as thirty sa`, he will give thirty sa`, and so on. The dried dates are measured, however, and the ripe dates are estimated by what they would eventually turn into as dried dates. A condition of this trade is that it must be for less than five sa`. Additionally, it must be a direct, hand-to-hand exchange; one person delivers the dried dates, and the other relinquishes [access to] one or more date palm trees. If the buyer has access to money, then he should make the purchase with money to steer clear of any ambiguity.” Al-Ifham fi Sharh `Umdat al-Ahkam, pp. 538-539. and Ibn `Uthaymin, [1882] Ibn `Uthaymin said: “The fourth condition: The ripe dates in their estimated amount should be equivalent to what they would turn into when dried, matching the quantity of dried dates given in exchange. In other words, if we say, ‘These fresh dates, when dried, would be one hundred sa`’, then they should be exchanged for one hundred sa` [of dried dates] without any additional amount. This means that the estimated quantity of fresh dates, according to what they would measure when dried, should be equal to the [quantity of] dried dates given as payment.” Fath Dhi al-Jalal wa al-Ikram bi Sharh Bulugh al-Maram (4/47). and Ibn Qudamah reported a consensus regarding the permissibility of `araya trades according to this principle. [1883] Ibn Qudamah said: “It is permissible to trade them for their estimated equivalent in dried dates, neither less nor more. The dried dates used to pay with must be known by weight, and it is not permissible to approximate. We do not know of any difference of opinion regarding this amongst those who permitted the ‘`araya’ trade.” Al-Mughni (4/47).

Evidences:

Firstly, from the Sunnah:

Zayd ibn Thabit h narrated that the Prophet g permitted for `araya to be sold for their estimated equivalent of dried dates. [1884] Reported by Bukhari (2380) and Muslim (1539). The wording here is from Bukhari.

Secondly, because the Legislator established estimation in place of measurement. Therefore, estimation should not be overridden, just as measurement is not overridden in matters where it is a requirement. [1885] See Kashshaf al-Qina` by Bahuti (3/258).

Thirdly, because the basic principle is to use measurement for both sides, but it has been dropped on one side and replaced with estimation due to necessity. [1886] See Kashshaf al-Qina` by Bahuti (3/259).

And fourthly, because abandoning measurement on both sides would increase uncertainty, whereas leaving it from one side reduces uncertainty. It being valid with reduced uncertainty does not necessitate that it is valid with increased uncertainty. [1887] See Al-Mughni by Ibn Qudamah (4/48).

For the exchange of possession to take place within one sitting

It is a prerequisite of an `araya trade for the exchange of possession to take place within one sitting, [1888] The manner of taking possession of the dates differs according to their type. For the date palm trees, it means [the owner] relinquishing access to them so that they can be utilised [by the buyer], and for the dried dates it means that they are weighed out. See Kashshaf al-Qina` by Bahuti (3/259). and this is the position of the Shafi`is [1889] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/472), Mughni al-Muhtaj by Shirbini (2/94), and Nihayat al-Muhtaj by Ramli (4/158). and Hanbalis [1890] Al-Insaf by Mardawi (5/28) and Kashshaf al-Qina` by Bahuti (3/259). and is the preferred opinion of Ibn Hazm, [1891] Ibn Hazm said: “The trade of fresh and ripe dates is permissible with anything that is permissible to trade – apart from what we have mentioned – whether in cash, with dirhams or dinars, and whether in cash or on credit, except for `araya with ripe dates. This is when the ripe dates arrive and there are people who want to buy them for consumption, in which case it is permitted for them to buy them directly from the tops of the palm trees in exchange for an estimated equivalent of dried dates, so long as it is less than five awsuq, which is given to the owner of the ripe dates as payment. It is not permissible to delay the payment, and this must not happen. It is also not permissible for transactions involving five awsuq or more, neither is it allowed for the ripe dates to be exchanged for less or more than their estimated equivalent in dried dates. If what we mentioned as being impermissible were to occur, then the transaction would be rendered void forever, and it would be included in the prohibition against [unlawful] seizure.” Al-Muhalla bi al-Athar (7/389). San`ani, [1892] San`ani said: “The stipulation of a mutual exchange of possession is because the concession occurred only in the trade of what was mentioned with the absence of certainty in their equivalence. As for exchange of possession, there was no concession granted, so it remains subject to its standard consideration. The evidence for its stipulation is what Shafi`i reported from the narration of Zayd ibn Thabit: ‘He mentioned some needy men from the Ansar who complained to the Messenger of Allah g, and they had no currency in their possession to buy ripe dates with and eat with the people, but they did have a surplus of dried dates. He permitted them to purchase the `araya in exchange for their estimated equivalent of dried dates.’” Subul al-Salam (3/45). Ibn Baz, [1893] Ibn Baz said: “A condition of this trade is that it must be for less than five sa`. Additionally, it must be a direct, hand-to-hand exchange; one person delivers the dried dates, and the other relinquishes [access to] one or more date palm trees. If the buyer has access to money, then he should make the purchase with money to steer clear of any ambiguity.” Al-Ifham fi Sharh `Umdat al-Ahkam, p. 539. and Ibn `Uthaymin, [1894] Ibn `Uthaymin said: “Seventh: Mutual exchange of possession between the two parties. What is the evidence for the stipulation of mutual exchange of possession? The evidence for that is that the default position for a trade of dates for dates is that it must fulfil two conditions: equivalence and mutual exchange of possession.” Fath Dhi al-Jalal wa al-Ikram bi Sharh Bulugh al-Maram (4/54). and a consensus is reported on this issue. [1895] Ibn Qudamah said: “Mutual exchange of possession within the same sitting is a condition of the `araya trade. This was the view of Shafi`i, and we do not know of any difference of opinion on the matter.” Al-Mughni (4/48).

This is for the following reasons. Firstly, because dates are a homogeneous commodity typically exchanged for their equivalent, and an exchange of possession is stipulated in such transactions apart from in cases excepted by the Shariah, which is not relevant to `araya trades. [1896] See Al-Mughni (4/48).

And secondly, because it involves the sale of a consumable item for its equivalent. [1897] See Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/472).

For it to be sold to be a person in need

It is a prerequisite of an `araya trade for it to be sold to a person in need of eating ripe dates, and this is the position of the Hanbalis, [1898] Al-Insaf by Mardawi (5/28) and Kashshaf al-Qina` by Bahuti (3/259). the view of Ibn al-Mundhir [1899] Ibn al-Mundhir said: “The `araya refers to dates palm trees that the owner excludes from his orchard when selling the rest of his fruits. They are not included in the sale, and instead, the owner keeps them for himself and his family. The Prophet g granted permission for people in need and poverty who do not possess any currency or gold but do possess dried dates to purchase the fruits of these `araya in exchange for an estimated equivalent of their dried dates. The Prophet g did this as an act of compassion towards the economically disadvantaged who could not ripe fresh dates.” Al-Ishraf (6/33). and Ibn Baz [1900] Ibn Baz said: “For `araya, there is no harm in exchanging the fruits with their estimated equivalent in dried dates, because in times of need, estimation stands in for measurement. Therefore, if someone sells the fruits on the tops of dates palm trees as ripe dates in exchange for their estimated equivalent in dried dates in response to the buyer’s urgent need to enjoy ripe dates, there is no harm in that… This exchange of dates for dates is permitted due to the need and the severity of the need, but it must be hand-to-hand.” Al-Ifham fi Sharh `Umdat al-Ahkam, p. 532. , and the preferred opinion of Ibn `Uthaymin. [1901] Ibn `Uthaymin said: “The fourth condition: The buyer must genuinely need the fresh dates, meaning that he desires them for consumption and enjoyment, and not be intending to keep them until they dry.” Al-Sharh al-Mumti` (8/419). This is because what is permitted because of need is not permitted without that need, as is the case with zakat for poor people and allowances for travellers. [1902] See Al-Mughni by Ibn Qudamah (4/49).

For the buyer to take the `araya as ripe dates

It is a prerequisite of an `araya trade for the buyer to take the `araya as ripe dates, and this is the position of the Shafi`is [1903] The key point is for the dates to be ripe at the time of purchase. If the buyer leaves them until they dry, the trade is still valid. Rawdat al-Talibin by Nawawi (3/562), Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/471), and Mughni al-Muhtaj by Shirbini (2/94). and Hanbalis. [1904] Sharh Muntaha al-Iradat by Bahuti (2/85) and Kashshaf al-Qina` by Bahuti (3/258). This is because the concession was granted to sell the dates on a gradual basis to fulfil the buyer’s need to enjoy ripe dates, and so the sale should not go beyond that need. [1905] See Kashshaf al-Qina` by Bahuti (3/258).

For the buyer to have no money to buy with

It is a prerequisite of an `araya trade for the buyer to not have any money to buy with, and this is the position of the Hanbalis, [1906] Al-Insaf by Mardawi (5/32) and Kashshaf al-Qina` by Bahuti (3/259). similar to the preponderant position of the Shafi`is, [1907] Mughni al-Muhtaj by Shirbini (2/94). the view of Ibn al-Mundhir, [1908] Ibn al-Mundhir said: “The `araya refers to dates palm trees that the owner excludes from his orchard when selling the rest of his fruits. They are not included in the sale, and instead, the owner keeps them for himself and his family. The Prophet g granted permission for people in need and poverty who do not possess any currency or gold but do possess dried dates to purchase the fruits of these `araya in exchange for an estimated equivalent of their dried dates. The Prophet g did this as an act of compassion towards the economically disadvantaged who could not ripe fresh dates.” Al-Ishraf (6/33). and the preferred opinion of Ibn `Uthaymin. [1909] Ibn `Uthaymin said: “`Araya’ refers to a situation where a person has dried dates from the previous year and the ripe dates of this year have arrived. He wishes to enjoy the fresh dates, but he does not have any dirhams, possessing only the dried dates from the year before. In such a case, the Shariah permits buying fresh dates with dried dates and names it ‘`araya’, derived from the ‘waiving’ of its actual price. So, the needy man with dried dates from the previous year comes to the owner of the orchard and says: ‘Sell me the dates of this palm tree – the ones that are currently fresh – in exchange for dried dates.’ This is permissible because of the calling of his need for the dates, for this needy man desires to enjoy fresh dates just as the people desire, but he does not have any dirhams. Therefore, he can buy the fresh dates directly from the tops of the palm trees in exchange for the dried dates, according to certain conditions:   The first condition: The buyer should not have any means to purchase other than the specified dried dates. If the buyer has other means such as dirhams, clothing, animals, or similar, then it is not permissible for him to buy ripe dates with dried dates.” Al-Sharh al-Mumti` (8/419). This is because what is permitted because of need is not permitted without that need, as is the case with zakat for poor people and allowances for travellers. [1910] See Al-Mughni by Ibn Qudamah (4/49).

4. The ruling if someone buys dates ripe and then leaves them until they dry

An `araya trade is invalidated if someone buys dates ripe and then leaves them until they dry, and this is the position of the Hanbalis [1911] Sharh Muntaha al-Iradat by Bahuti (2/85). See also Al-Rawd al-Murbi` by Bahuti (2/277). and the preferred opinion of Ibn `Uthaymin. [1912] Ibn `Uthaymin said: “His statement, ‘it is invalidated’, means that the sale becomes void. This is because the Shariah only permitted the trade of ripe dates for dried dates – even though this is originally prohibited – in order to fulfil the need of a poor person who requires ripe dates. However, when the buyer neglects and abandons the dates until they dry, the reason for the permissibility granted by the Shariah disappears. It is not permissible to open the door to deception, saying that if we had validated the trade and obliged the seller to uphold the contract, people would exploit this as a loophole. Therefore, the author states: ‘If someone purchases `ariyyah [dates] and they dry, the sale is invalidated.’” Al-Sharh al-Mumti` (9/34). This is because buying them was only permitted only due to the need for eating fresh dates. When they dry, the lack of need becomes apparent. [1913] See Sharh Muntaha al-Iradat by Bahuti (2/85).

Fifthly: The public auction contract (muzayadah)

1. Defining “the muzayadah contract”

The public auction contract is when a person announces their commodity, either themselves or through a representative, and then the people outbid each other for that commodity until the highest bidder remains, and they take the item. [1914] See Al-Mabsut by Sarakhsi (15/66) and Al-Qawanin al-Fiqhiyyah by Ibn Juzayy, p. 175.

2. Types of public auction contract

The public auction contract varies according to its context, including sale, lease, and others, and according to its nature, whether optional, like regular auctions among individuals, or mandatory, like auctions mandated by the judiciary or required by public and private institutions, governmental bodies, and individuals. [1915] Decision no. 77 (4/8). Majallah Majma` al-Fiqh al-Islami, issue 18 (2/169).

3. The ruling on the public auction contract

The public auction contract is permissible, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [1916] Mukhtasar Ikhtilaf al-`Ulama by Tahawi (3/60) and Al-Mabsut by Sarakhsi (15/138). Malikis, [1917] Al-Taj wa al-Iklil by Mawwaq (4/379) and Hashiyat al-`Adawi `ala Kifayat al-Talib al-Rabbani (2/137). Shafi`is, [1918] Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/313) and Mughni al-Muhtaj by Shirbini (2/37). and Hanbalis. [1919] Kashshaf al-Qina` by Bahuti (3/183) and Matalib ‘Uli al-Nuha by Rahibani (3/56).

Evidences:

Firstly, from the Sunnah:

Jabir ibn `Abdillah k narrated: “A man decided that a servant of his would be manumitted after his death and later on he was in need of money, so the Prophet g took the slave and said, ‘Who will buy this servant from me?’ Nu`aym ibn `Abdillah bought him for such-and-such a price, and the Prophet g gave him the servant.” [1920] Reported by Bukhari (2141) and Muslim (997). The wording here is from Bukhari.

The Prophet g presented the servant for auction and expressed a preference for reaching the highest price to benefit the debtor who had sold him. [1921] See Sharh Sahih al-Bukhari by Ibn Battal (6/269).

And secondly, Muslims have always engaged in public auctions in their marketplaces. [1922] See Al-Mughni by Ibn Qudamah (4/161) and Kashshaf al-Qina` by Bahuti (3/183).

Sixthly: The tender contract (munaqasah)

1. Defining “the munaqasah contract”

The tender contract is the attempt to obtain the best offer at the lowest prices. In this contract, the requesting party invites those who are interested to submit their bids according to set conditions and specifications. [1923] See Majallah Majma` al-Fiqh al-Islami, issue 12 (2/572) and Majallat al-Buhuth al-Islamiyyah (91/222-223).

2. The ruling on the tender contract

The tender contract is permissible, as stated in the decisions of the Islamic Fiqh Academy [1924] The decision of the Islamic Fiqh Academy stated: “Tendering is permissible in Sharia, and it is like the public auction. Its ruling applies regardless of whether it is a general or specific tender, internal or external, and public or secret.” Majallah Majma` al-Fiqh al-Islami, issue 12 (2/572). Decision no. 107 (1/12). and the Council of Senior Scholars in Saudi Arabia [1925] The research of the Council of Senior Scholars included: “All types of tendering are permissible according to the Shariah because they fall within the realm of free competition, and Islamic economics is based on the principle of competition.” Majallat al-Buhuth al-Islamiyyah (91/224). and indicated by the Permanent Committee in Saudi Arabia [1926] They did not directly state its ruling. The verdict of the Permanent Committee stated: “It is not permissible for the committee responsible for awarding contracts through tendering to show favoritism to an employee by awarding the tender to his family or his parent’s family, nor is it allowed to show bias in increasing the rent of the property. This is because such actions can cause harm to others who participated in the tender from a certain perspective, and it involves wrongdoing, betrayal, and inflicting harm on the government. Neither the employee involved nor anyone else who is aware of this deception and injustice should accept it. Instead, they should disapprove of it and seek to rectify it if they can.” Fatawa al-Lajnah al-Da’imah – First assembly (15/157). . This is because it falls under the category of free competition, and Islamic economics is based on the principle of competition. [1927] See Majallat al-Buhuth al-Islamiyyah (91/224) and Majallah Majma` al-Fiqh al-Islami, issue 12 (2/572).

Seventhly: The construction contract (muqawalah)

1. Defining “the muqawalah contract”

The muqawalah contract is an agreement where one of the parties commits to producing something or performing a task, in exchange for a fee pledged by the other party.

2. The ruling on the construction contract

The construction contract is permissible, whether the contractor provides both the labour and materials or only the labour without providing the materials, as was stated in the decision of the Islamic Fiqh Academy [1928] The decision of the Islamic Fiqh Council, no. 129 (3/14), on the topic of “Construction and building contracts: their essence, manner, and forms”, during its fourteenth session held in Doha, Qatar, from 8-13 Dhu al-Qa`dah 1423 AH / 11-16 January 2003 CE. Majallah Majma` al-Fiqh al-Islami, issue 14 (2/287). and by Ibn `Uthaymin [1929] Ibn `Uthaymin said: “His statement, ‘and the construction of a wall’, is as if to say, ‘whoever builds this wall for me will be entitled to such-and-such.’ This is known to us as ‘muqawala’, and we say that this is permissible. If he concludes a contract with a construction company stating that the contractor is being hired, then it becomes a lease agreement.” Al-Sharh al-Mumti` (10/346-347). . This is because if the contractor provides both the materials and labour, it is a contract of manufacturing, and if they only provide the labour, it is a lease contract, and both types of contracts are permissible. [1930] The decision of the Islamic Fiqh Council, no. 129 (3/14), on the topic of “Construction and building contracts: their essence, manner, and forms”, during its fourteenth session held in Doha, Qatar, from 8-13 Dhu al-Qa`dah 1423 AH / 11-16 January 2003 CE. Majallah Majma` al-Fiqh al-Islami, issue 14 (2/287-288).

Eighthly: The maintenance contract (siyanah)

1. Defining “the maintenance contract”

The maintenance contract is a newly established and independent contract, subject to the general rules of contracts. Its adaptation and rulings vary depending on its forms. In essence, it is a compensatory contract that entails the commitment of one party to inspect and repair a machine or any other item, whether for routine or emergency repairs, for a specified duration, in exchange for a known compensation. The maintainer may undertake the work alone or in combination with providing materials. [1931] Decision of the Islamic Fiqh Council, no. 94 (6/11), on the topic of “The maintenance contract”, during its eleventh session held in Manama, Kingdom of Bahrain, from 25-30 Rajab 1419 AH / 14-19 November 1998 CE. Majallah Majma` al-Fiqh al-Islami, issue 11 (2/279).

2. The ruling on the maintenance contract [1932] It is stipulated in all forms that the maintenance should be clearly specified in a manner that negates any ambiguity that could lead to disputes. Clarification of the materials, if they are the responsibility of the maintainer, is necessary, and specifying the fee is a requirement in all cases. See the decision of the Islamic Fiqh Council, no. 94 (6/11). Majallah Majma` al-Fiqh al-Islami, issue 11 (2/280).

The maintenance contract has many forms. Some of the permissible forms were stated in the decision of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation as follows: [1933] Decision of the Islamic Fiqh Council, no. 94 (6/11). Majallah Majma` al-Fiqh al-Islami, issue 11 (2/279-280).

The first form: A maintenance contract not linked to another contract, where the maintainer commits only to providing the service, or along with the provision of minor materials that are not typically accounted for by contracting parties.

The second form: A maintenance contract not linked to another contract, where the maintainer commits to providing the service, and the owner commits to providing the materials.

The third form: Conditional maintenance in a sales contract, where the seller is obligated to provide maintenance for a specified period, regardless of whether or not it includes providing materials.

The fourth form: Conditional maintenance in a lease contract, where the lessee is responsible for maintenance so long as their ability to enjoy the benefit of the commodity is not dependent on that maintenance. [1934] The maintenance required for operating engines, such as oil changes, filters, tires, and similar items necessary for the functioning of the commodity during the rental period is the responsibility of the lessee. However, if their ability to enjoy the benefit of the commodity is dependent on that, then the responsibility lies with the lessor, even without a specific stipulation being included in the contract. [1935] The maintenance that enables the lessee to benefit from the leased property is the responsibility of the lessor.

Ninthly: Sale of human milk

Selling human milk is permissible, [1936] Whilst acknowledging its permissibility, it is necessary for the biological mother to have knowledge of the owner of the milk and the number of nursing instances. As for the use of wet nurses and the retention of their milk, commonly known as ‘breast milk banks’, the matter is subject to a difference opinion. This is because these banks can lead to the violation of the sanctities of breastfeeding, which are protected by the Shariah. Prohibitions related to breastfeeding parallel those related to blood relations. Preserving lineage is one of the overarching goals of the comprehensive legal system, and breast milk banks may lead to issues of mixing or doubt. See the decision of the Islamic Fiqh Council, during its session held in Jeddah from 1-6 Rabi` al-Thani 1406 AH / 22-28 December 1985 CE, Majallah Majma` al-Fiqh al-Islami, issue 2 (2/424), and Fatawa al-Lajnah al-Da’imah – First assembly (21/44). and this was the position of the majority: the Malikis, [1937] Mawahib al-Jalil by Hattab (6/66) and Minah al-Jalil by `Ulaysh (5/13). Shafi`is, [1938] Rawdat al-Talibin by Nawawi (3/355) and Mughni al-Muhtaj by Shirbini (2/12). and Hanbalis. [1939] Al-Furu` by Ibn Muflih (6/135) and Al-Insaf by Mardawi (4/200).

Evidences:

Firstly, from the Book:

The Statement of Allah Exalted: “And if they nurse your child, compensate them.” [1940] al-Talaq, 6.

In His Statement, “compensate them”, Allah Exalted has assigned a price for human breast milk, because the contracted item – according to the predominant opinion in the context of lease contracts – is the milk, [1941] See Al-Ta`liq `ala al-Kafi fi Fiqh al-Imam Ahmad by Ibn `Uthaymin (5/16). making its sale permissible by analogy to leasing.

Secondly, because it is pure and can be utilised, similar to the milk of sheep. [1942] See Mughni al-Muhtaj by Shirbini (2/12).

And thirdly, because it is permissible to take compensation for it in hiring a wet nurse, [1943] A “wet nurse” is someone who breastfeeds children other than their own. See Al-Binayah Sharh Al-Hidayah by `Ayni (10/287) and Mawahib al-Jalil by Hattab (7/563). as with other beneficial services. [1944] See Al-Mubdi` by Burhan al-Din Ibn Muflih (3/350).

Tenthly: Trade of intellectual property rights

Preface: Defining “intellectual property rights”

Intellectual property rights are financial rights related to intangible things, granting their owner jurisdiction over what arises from them. There are various types, including trade names, trademarks, copyrights, and inventions or innovations. [1945] See Al-Ma`ayir al-Shar`iyyah by the Accounting and Auditing Organisation, p. 1036.

1. The trade of trade names and trademarks

Defining “trade names” and “trademarks”

A “trade name” is the name used by a commercial enterprise for commercial purposes which is legally registered and utilised in contracts and official contexts. [1946] See The Official Website of the Saudi Ministry of Commerce.

A “trademark” is a symbol placed by a merchant or manufacturer on goods to distinguish them easily from other goods of the same kind. It can take the form of a particular name, signature, or word, or group of letters, numbers, drawings, or other distinctive features. [1947] See Mu`jam al-Mustalahat al-Iqtisadiyyah wa al-Islamiyyah by `Ali ibn Muhammad Gomaa, p. 387, and The Official Website of the Saudi Ministry of Commerce.

The ruling on the trade of trade names and trademarks

It is permissible to deal with and transfer trade names and trademarks in exchange for financial compensation, [1948] So long as the trade name or trademark is related to a permissible matter. so long as the transaction is free from uncertainty, deception, and cheating, and this was stated in the decisions of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation [1949] The decision of the Islamic Fiqh Academy (no. 5) on the topic of “intellectual property rights” stated the following: “The assembly of the Islamic Fiqh Academy convened for its fifth session in Kuwait from 1-6 Jumada al-Awwal 1409 AH / 10-15 December 1988 CE. After reviewing the research presented by the members and experts on the topic of intellectual property rights and listening to the discussions held concerning the subject, it decided:   Firstly, trade names, commercial addresses, trademarks, copyright, and inventions or innovations are private rights for their owners. In contemporary custom, these rights have acquired a recognised financial value to attract investment. These rights are acknowledged and respected by Shariah, and it is not permissible to infringe upon them.   Secondly, it is permissible to deal with trade names, commercial addresses, or trademarks and transfer any of them for financial compensation, provided that there is no uncertainty, misrepresentation, or deception, considering that they have become financial rights.   Thirdly, the rights of authorship and invention or innovation are protected by Shariah and their owners have the right to dispose of them. It is not permissible to infringe upon these rights.” Majallah Majma` al-Fiqh al-Islami, issue 5 (3/2581). and the Accounting and Auditing Organisation for Islamic Financial Institutions [1950] See Al-Ma`ayir al-Shar`iyyah (Shariah Standard no. 42) by the Accounting and Auditing Organisation, p. 1037. . This is because they are private rights of their owners, which have become valuable in contemporary practice and are recognised as financial assets used to secure funding for their owners. [1951] See Majallah Majma` al-Fiqh al-Islami, issue 5 (3/2581).

2. The trade of copyright and innovation rights [1952] “Innovation” refers to the invention and creation of something that has never been done before.

Copyright and innovation rights are legally protected for their owners, and it is permissible for them to dispose of these rights through trade or other means. It is not allowed for anyone to infringe upon copyright and innovation rights without the owner’s permission. This is confirmed by the decisions of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation, [1953] The decision of the Islamic Fiqh Academy (no. 5) on the topic of “intellectual property rights” stated the following: “The assembly of the Islamic Fiqh Academy convened for its fifth session in Kuwait from 1-6 Jumada al-Awwal 1409 AH / 10-15 December 1988 CE. After reviewing the research presented by the members and experts on the topic of intellectual property rights and listening to the discussions held concerning the subject, it decided:   Firstly, trade names, commercial addresses, trademarks, copyright, and inventions or innovations are private rights for their owners. In contemporary custom, these rights have acquired a recognised financial value to attract investment. These rights are acknowledged and respected by Shariah, and it is not permissible to infringe upon them.   Secondly, it is permissible to deal with trade names, commercial addresses, or trademarks and transfer any of them for financial compensation, provided that there is no uncertainty, misrepresentation, or deception, considering that they have become financial rights.   Thirdly, the rights of authorship and invention or innovation are protected by Shariah and their owners have the right to dispose of them. It is not permissible to infringe upon these rights.” Majallah Majma` al-Fiqh al-Islami, issue 5 (3/2581). the Islamic Research Academy in Cairo, [1954] Decision no. 145, Rabi` al-Akhir 1423 AH, transmitted from Watha’iq al-Nawazil by Jizani (2/1122). the European Council for Fatwa and Research, [1955] Decision no. 29 (8/1), transmitted from Watha’iq al-Nawazil by Jizani (2/1122). and the Accounting and Auditing Organisation for Islamic Financial Institutions. [1956] See Al-Ma`ayir al-Shar`iyyah (Shariah Standard no. 42) by the Accounting and Auditing Organisation, p. 1037. This is because these rights are considered private and have acquired financial value, often serving as a means of funding for their owners, as recognised by contemporary custom. [1957] Decision no. 43 (5/5). Majallah Majma` al-Fiqh al-Islami, issue 5 (3/2581).

Eleventhly: Selling water after acquiring it

Selling water after acquiring it is permissible, in containers and the like.

Evidences:

Firstly, from the Sunnah:

Al-Zubayr ibn al-`Awwam narrated that the Prophet g said: “It is better for one of you to take a rope, gather a bundle of wood, and sell it, through which Allah repels your face from the Fire, than to ask the people, who may give to him or deny him.” [1958] Reported by Bukhari (2373).

Whatever a person possesses – whether it is firewood or water – they own, and whoever owns something has the right to sell it. [1959] See Al-Mughni by Ibn Qudamah (4/62), `Umdat al-Qari by `Ayni (12/217), and Subul al-Salam by San`ani (2/16).

Secondly, from the scholarly consensus:

A consensus on this issue was related by Ibn al-Mundhir, [1960] Ibn al-Mundhir said: “This indicates his prohibition of selling the exclusive right to use water. It also suggests that the meaning of this is the statement of everyone whom scholars have preserved knowledge from, that whoever takes permissible water, such as a person drawing water from the Nile or the Euphrates in a container, has the right to sell it. It is not permissible for them to agree on anything contrary to the practice of the Messenger of Allah g.” Al-Awsat (10/130). Mazari, [1961] Mazari said: “Know that among the people, there are those who claim that there is consensus that whoever takes water from the Tigris in his vessel and acquires it exclusively has the right to sell it, except for an anomalous opinion mentioned in this regard, which is not considered valid.” Al-Mu`lim bi Fawa’id Muslim (2/288). Ibn Qudamah, [1962] Ibn Qudamah said: “As for what one acquires of water in his vessel, or takes from a well with his bucket, or acquires in his container, or extracts from minerals, he indeed owns it through these actions, and he has the right to sell it without any disagreement amongst the scholars.” Al-Mughni (4/62). Abu al-`Abbas al-Qurtubi, [1963] Abu al-`Abbas al-Qurtubi said: “Muslims are unanimously agreed that if a person takes water from the Nile, for example, he owns it and has the right to sell it.” Al-Mufhim (4/441). and Ibn al-Qattan. [1964] Ibn al-Qattan said: “There is no disagreement amongst scholars – except for those with anomalous opinions that are not considered valid – that if a person scoops water from the Tigris into a vessel, he has the right to sell it, drink it, and benefit from it, for it is a limited and known quantity.” Al-Iqna` fi Masa’il al-Ijma` (2/223).

And thirdly, because the established custom in various places is to sell water in containers, and no-one objects to this, and no-one is allowed to drink from it, perform ablutions with it, or take it without the owner’s permission. [1965] Ibn Qudamah said: “As for what one acquires of water in his vessel, takes from a well with his bucket, carries on his camel, or obtains from natural sources, he indeed owns it through these actions, and he has the right to sell it without any difference of opinion amongst the people of knowledge.” Al-Mughni (4/62).

Twelfthly: Trade in animals

1. Trading animals that can be of benefit [1966] Ibn `Abd al-Barr said: “Animals are of two types: a type whose meat can be consumed, and a type whose meat cannot be consumed. As for those whose meat can be consumed, it is permissible to buy or sell them. The type whose meat cannot be consumed are divided into two categories: those that have utility whilst alive, and those that have no utility. As for those that have utility, such as for riding, adornment, hunting, and other purposes beneficial to humans, it is permissible to buy or sell them. The dog is the only exception to this due to the prohibition mentioned by the Messenger of Allah g concerning the price of a dog. As for the type of animal that has no utility, it is not permissible to trade it under any circumstances.” Al-Kafi fi Fiqh Ahl al-Madinah (2/674).

It is permissible to trade animals that are generally of benefit, [1967] There is a difference of opinion between the schools of thought regarding whether certain animals are “of benefit” or not. except for what is excluded by the Shariah, [1968] Such as dogs or pigs. See Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/674), Al-Mughni by Ibn Qudamah (4/193, 194), Al-Majmu` by Nawawi (9/240), and Fath al-Qadir by al-Kamal ibn al-Humam (6/419). and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [1969] Tabyin al-Haqa’iq by Zayla`i (4/126) and Al-Durr al-Mukhtar li al-Haskafi wa Hashiyat Ibn `Abidin (5/227). See also Fath al-Qadir by al-Kamal ibn al-Humam (6/419). Malikis, [1970] Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/657, 674) and Mawahib al-Jalil by Hattab (6/64). Shafi`is, [1971] Fath al-`Aziz by Rafi`i (8/118) and Al-Majmu` by Nawawi (9/240). and Hanbalis, [1972] Kashshaf al-Qina` by Bahuti (3/152) and Sharh Muntaha al-Iradat by Bahuti (2/8). See also Al-Mughni by Ibn Qudamah (4/193, 194). and a consensus was reported on this issue. [1973] Ibn Hazm said: “They unanimously agreed that selling owned animals – except for dogs, foxes, bees, or those that have no utility – is permissible.” Maratib al-Ijma`, p. 87. Shams al-Din ibn Qudamah said: “Every owned item can be acquired and utilised, even without a necessity. It is permissible to sell them, except for what is excluded by the Shariah, such as dogs. A permissible benefit is permissible retain, so it is allowed to take compensation for them, and it is permitted for someone else to spend money on them. Whether the item is pure, like clothing, real estate, livestock, horses, and game, or those whose purity is subject to disagreement, like mules and donkeys, and we do not know of any difference of opinion on this matter.” Al-Sharh al-Kabir `ala Matn al-Muqni` (4/8).

Evidences:

Firstly, from the Book:

The Statement of Allah Exalted: “Allah has permitted trading and forbidden interest.” [1974] al-Baqarah, 275.

Allah has permitted trade in a general sense, and therefore any trade remains permissible unless excepted by the Shariah. This includes all owned animals that are of benefit. [1975] See Al-Mughni by Ibn Qudamah (4/194).

And secondly, because trade is legislated as a means of fulfilling needs and obtaining permissible benefits, allowing each person to benefit from what is in the possession of its owner. Therefore, it is permissible to sell animals that are of benefit. [1976] See Al-Mughni by Ibn Qudamah (4/194).

2. Trading cats (felines) [1977] This practice is specifically mentioned because it is widespread and people commonly own them.

Trading cats is permissible, and this was agreed upon by the four jurisprudential schools of thought: the Hanafis, [1978] Sharh Mukhtasar al-Tahawi by Jassas (3/108) and Tabyin al-Haqa’iq by Zayla`i (4/126). See also Bada’i` al-Sana’i` by Kasani (5/142). Malikis, [1979] Al-Taj wa al-Iklil by Mawwaq (4/267) and Minah al-Jalil by `Ulaysh (4/455). Shafi`is, [1980] Al-Majmu` by Nawawi (9/229) and Rawdat al-Talibin by Nawawi (3/400). and Hanbalis, [1981] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/348) and Al-Insaf by Mardawi (4/187). it is the view of most of the predecessors, [1982] Nawawi said: “Their trade was permitted by Ibn `Abbas, Ibn Sirin, Hakam, Hammad, Malik, Thawri, Shafi`i, Ahmad, Ishaq, and Abu Hanifah, and the rest of the People of Opinion.” Al-Majmu` (9/229). See also Al-Mughni by Ibn Qudamah (4/193). and a consensus was reported on this issue. [1983] Ibn `Abd al-Barr said: “Based on the evidence of their consensus on [the permissibility of] trading cats, predatory animals, leopards used for hunting, and domesticated red camels.” Al-Tamhid (9/46). Al-Haddadi said: “Trading cats is permissible by consensus.” Al-Jawharat al-Nayyirah (1/220). Some scholars differed and took the view that trading cats is not permissible. See Al-Awsat by Ibn al-Mundhir (6/214), Al-Muhalla bi al-Athar by Ibn Hazm (7/498), and Zad al-Ma`ad by Ibn al-Qayyim (5/685).

Evidences:

Firstly, from the Sunnah:

Kabshah bint Ka`b ibn Malik, who was the wife of Ibn Abi Qatadah, narrated: “Abu Qatadah entered, and I poured water for him to perform ablution. Then a cat came, and he allowed it to drink from the water until it was satisfied. He then saw me looking at him, and said, ‘Do you find it strange, O Niece?’

‘Yes’, I replied

He said: ‘The Messenger of Allah g said: “They are not impure. Rather, the males and females are from those who roam amongst you.”’” [1984] Reported by Abu Dawud (75), Tirmidhi (92), Ibn Majah (367), and Ahmad (22580). The wording here is from Abu Dawud. Graded sahih by Tirmidhi, Ibn Hibban in his Sahih (1299), Hakim in Al-Mustadrak (567), Ibn `Abd al-Barr in Al-Tamhid (1/318), Nawawi in Al-Majmu` (1/117), Ibn al-Mulaqqin in Al-Badr al-Munir (1/551), Ibn Hajar in Al-Matalib al-`Aliyah (1/59), Albani in Sahih Sunan Abi Dawud (75), and Shu`ayb al-Arna’ut in his explication of Sunan Abi Dawud (75).

This narration indicates that it is permissible to take cats to benefit from them, and it is well-known that whatever is permissible to benefit from is also permissible to buy and sell, except for what is excluded by a specific evidence. [1985] See Al-Istidhkar by Ibn `Abd al-Barr (1/164), Ma`alim al-Sunan by Khattabi (1/41), and Sharh Sunan Ibn Majah by al-Maghaltay, p. 203.

And secondly, because they are animals that are permissible to own and benefit from in general, therefore it is permissible to trade them, as is the case for example with mules. [1986] See Al-Mubdi` by Burhan al-Din Ibn Muflih (3/348).

3. Trading dogs for which there is an allowance to own [1987] Like hunting dogs, guard dogs, police dogs, and so on.

The scholars differed regarding the ruling on trading dogs for which there is an allowance to own [1988] As for dogs that are not allowed to be owned, their trade is not permissible. See the section on “the trade of dogs” in the chapter on “prohibited transactions”. with two opinions.

The first opinion states that trading dogs for which there is an allowance to own is prohibited, [1989] Some of the people of knowledge stated the prohibition of purchasing it out of necessity if one cannot find someone willing to give it to them without a trade (i.e., for free). In this case, the sin would be upon the seller. Ibn Hazm said: “Selling a dog is not permissible in principle, whether it is a hunting dog, herding dog, or any other type. However, if someone is forced to sell a dog and cannot find anyone to give it to, then it is permissible for them to sell it. The transaction is considered permissible for the buyer but impermissible for the seller, and the seller may be compelled to return the price when possible. The same applies to bribery for the purpose of stopping oppression, paying ransom for a captive, and manufacturing weapons for an oppressor. There is no distinction.” Al-Muhalla bi al-Athar (7/492). Ibn `Uthaymin said: “The trade of dogs is not permissible, regardless of whether they are trained or not… If someone asks: ‘The narration allows acquiring a “hunting dog, herding dog, or farming dog”, so how can a dog be acquired if they are not to be purchased?’ The response is: ‘The dog is acquired by taking it from the wild and training it.’ If it is said: ‘What if that is not possible?’ The response is: ‘Perhaps it is possible. If you someone with a dog and say, “Give it to me”, and he responds, “I use it for hunting”, then he has an excuse. However, if he does not use it for hunting, then he is obligated to give it to you. If he refuses, you can give him something in return. In that case, he would be the one committing a sin.’” Al-Ta`liq `ala al-Kafi (5/37). and this was the position of the majority – the most well-known view of the Malikis, [1990] Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/675), Mawahib al-Jalil by Hattab (6/70), and Sharh al-Zurqani `ala Mukhtasar Khalil (5/31). the Shafi`is, [1991] Al-Majmu` by Nawawi (9/228) and Tuhfat al-Muhtaj by Ibn Hajar al-Haytami (4/234). the Hanbalis, [1992] Al-Mubdi` by Burhan al-Din Ibn Muflih (3/352) and Kashshaf al-Qina` by Bahuti (3/154). and the Zahiris [1993] Ibn Hazm said: “Selling a dog is not permissible in principle, whether it is a hunting dog, herding dog, or any other type. However, if someone is forced to sell a dog and cannot find anyone to give it to, then it is permissible for them to sell it. The transaction is considered permissible for the buyer but impermissible for the seller, and the seller may be compelled to return the price when possible. The same applies to bribery for the purpose of stopping oppression, paying ransom for a captive, and manufacturing weapons for an oppressor. There is no distinction.” Al-Muhalla bi al-Athar (7/492). See also Al-Mughni by Ibn Qudamah (4/189). – and the view of some of the predecessors. [1994] Ibn Qudamah said: “The trade of a dog is invalid, even if it is trained. This was the view of al-Hasan, Rabi`ah, Hammad, Awza`i, Shafi`i, and Dawud.” Al-Mughni (4/189). See also Al-Majmu` by Nawawi (9/228).

Evidences:

Firstly, from the Sunnah:

Abu Juhayfah h narrated: “The Prophet g forbade the price of a dog or of blood; forbade the profession of tattooing, getting tattooed, the one who consumes usury, and the one who receives it; and cursed illustrators of animate beings.” [1995] Reported by Bukhari (2086).

Abu Mas`ud al-Ansari h narrated that the Messenger of Allah g forbade the price of a dog, the income of a prostitute, and the earnings of a fortune-teller. [1996] Reported by Bukhari (2237) and Muslim (1567).

In these two narrations, the Prophet g forbade the price of a dog without restriction. [1997] See Mawahib al-Jalil by Hattab (6/70).

Sa’ib ibn al-Yazid said: “Rafi` ibn Khadij narrated to me that the Messenger of Allah g said: ‘The price of a dog is impure, the income of a prostitute is impure, and the earnings of a cupper are impure.’” [1998] Reported by Muslim (1586).

Declaring the price of a dog to be impure implies generality unless a specific evidence is found to suggest otherwise for certain dogs, and such an evidence is not established. [1999] See Ihkam al-Ahkam Sharh `Umdat al-Ahkam (2/126).

The second opinion states that trading dogs for which there is an allowance to own is permissible, and this was the position of the Hanafis, [2000] Some Hanafis permitted the trade of trained and untrained dogs, whereas others restricted its permissibility to trained dogs. Al-Mabsut by Sarakhsi (11/199), Tabyin al-Haqa’iq by Zayla`i (4/126), Hashiyat Ibn `Abidin (5/69, 227), and Al-Fatawa al-Hindiyyah (3/114). a view of the Malikis, [2001] Al-Kafi fi Fiqh Ahl al-Madinah by Ibn `Abd al-Barr (2/675), Mawahib al-Jalil by Hattab (6/70), and Sharh al-Zurqani `ala Mukhtasar Khalil (5/31). the view of al-Harithi from the Hanbalis, [2002] Al-Insaf by Mardawi (4/202). the view of a group of the predecessors, [2003] This view was related from Jabir h, Ibrahim al-Nakha`i, `Ata’ ibn Abi Rabah, and Ishaq ibn Rahawayh. See Musannaf Ibn Abi Shaybah (4/348, nos. 20917 and 20918), Al-Ishraf by Ibn al-Mundhir (4/121), Al-Awsat by Ibn al-Mundhir (10/25), and Sharh al-Sunnah by al-Baghawi. and the preferred opinion of Albani. [2004] Albani said: “Thirdly: Related from Hammad ibn Salamah, with the wording: ‘He forbade the price of felines and dogs except for hunting dogs.’ Reported by Nasa’i (2/196), who stated after the narration: ‘It is not authentic.’ I say that it seems that Nasa’i means the addition of ‘hunting dogs’, because of its exclusivity to Hammad ibn Salamah and contrast to other versions of the narration that have and will be mentioned, as well as other narrations that prohibit selling dogs in general. However, the meaning of the exception is correct, based on authentic narrations that permit owning hunting dogs. If a dog falls into that category, its trade and price are permissible, just like other permissible things, as clarified by Imam Abu Ja`far al-Tahawi.” Silsilat al-Ahadith al-Sahihah (6/1156). He also said: “The hadith with this exception is considered authentic, not far-fetched. He said: ‘And the exception is an addition to the narrations prohibiting the price of a dog. Therefore, its acceptance is necessary, and Allah knows best.’ I mentioned: ‘There are reports from Ibrahim, `Ata’, and others that there is no harm in the price of a hunting dog, according to Ibn Abi Shaybah.’” Silsilat al-Ahadith al-Sahihah (6/1241).

This is for the following reasons. Firstly, because of the benefit it provides, and anything permissible to benefit from is also permissible to trade. The prohibition only applies to dogs that are of no benefit. [2005] See Hashiyat al-Shalabi `ala Tabyin al-Haqa’iq li al-Zayla`i (4/125).

Secondly, because acquiring dogs through gift or bequest without compensation is permissible, and therefore acquiring them for compensation is also allowed. [2006] See Al-Mabsut by Sarakhsi (11/199, 200) and Al-Hawi al-Kabir by Mawardi (5/375).

And thirdly, because it is an animal that is permissible to use for hunting, and therefore its trade is also allowed. [2007] See Al-Hawi al-Kabir by Mawardi (5/375).

Thirteenthly: The ruling on prizes in competitions that do not require payment

Prizes in competitions that do not require a fee for participation are permissible. [2008] As for competitions that require payment for participation or whose whole or partial value is included in the prize pool, they are not permissible. See the section on “The ruling on prizes from competitions that require payment”. This was stated in the decision of the Islamic Fiqh Academy of the Organisation of Islamic Cooperation [2009] Decision no. 127 (1/14) of the Islamic Fiqh Academy on the topic of “competition cards”, convened for its fourteenth session in Doha, Qatar, from 8-13 Dhu al-Qa`dah 1423 AH / 11-16 January 2003 CE, stated the following:   “Cards from hotels, airlines, and establishments that provide points leading to permissible benefits are permissible if they are free (without compensation). However, if they involve compensation, they are not permissible because of the uncertainty involved.” Majallah Majma` al-Fiqh al-Islami, issue 14 (1/301-302). and was the verdict of the Permanent Committee in Saudi Arabia [2010] The decision of the Permanent Committee stated: “If this competition involves answering questions on cultural topics, without any payment, then receiving the corresponding prize is permissible and there is no harm in that.” Fatawa al-Lajnah al-Da’imah – Second assembly (11/191). . This is because the default position regarding them is that they are permissible, unless there is a legislated harm associated with them.