Post on 21-Apr-2015
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الكتاب البيع
Kitab al-Buyu’
BOOK OF SALES
From the book Al-Bidayat al-Mujtahid wa Nihayat al-Muqtasid
The Distinguished Jurists Primer, Vol 2 by Ibn Rushd
Explained by Dr. Ibrahim Dremali
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TABLE OF CONTENTS
Part 1: Definition of the Kinds of Absolute Sales ............................................ 2
The Types of Sales ................................................................................. 2
The Kinds of Sales .................................................................................. 2
Part 2: Definition of the General Causes of the Vitiation in Absolute Sales ......... 3
Chapter 1: Corporeal Property Prohibited for Sale ....................................... 3
Chapter 2: Usurious Sales (Riba) .............................................................. 3
Two types of Riba ................................................................................ 3
Four sections of Riba ............................................................................ 4
Sub-Chapter: Sales through Usurious Means .............................................. 5
Iqala: Negotiated recession of a contract ................................................ 5
Buyu‟ al-Ajal: Deferred Sales ................................................................ 5
Proposition: Sale of food before Possession ............................................. 5
Chapter 3: Sales Prescribed on Account of Misappropriation the Cause of Which
is Gharar ............................................................................................... 6
Gharar from the aspect of Jahl .............................................................. 6
Prohibited sales prescribed by the Prophet .............................................. 6
بال المنطوق Al mantuq billa: ....................................................................... 6
Issues not Expressly Covered ................................................................ 7
Chapter 4: Sales with Conditions and Provisions ......................................... 8
Chapter 5: Sales Prescribed because of Harm or Fraud .............................. 11
Individual Sale Countering the Sale of Your Brother ................................ 11
Section 1: Going Out to Meet/Trade Caravans (Outside the city Limits) ..... 11
Section 2: Sale by a Settler in behalf of the Inhabitant of the Desert ........ 12
Section 3: Prohibition of Raising Bids .................................................... 13
Chapter 6: Prescription of Sale because of the Time of Prayer ..................... 13
Part 3: Reasons and Conditions Validating Sales .......................................... 14
Chapter 1: The Contract („Aqd) .............................................................. 14
Element 1: The Form of the Contract („Aqd) .......................................... 14
Element 2: The Subject Matter of the Contract (Ma‟qud „alayh) ................ 15
Element 3: Parties to the Contract ....................................................... 15
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PART 1
DEFINITION OF THE KINDS OF ABSOLUTE SALES
Buyu’: a sale, an exchange, a transaction between two individuals بيوع
The Types of Sales
Corporeal property for corporeal property, something determined عيي ببلعيي (1
and present
Corporeal property for a corresponding liability عيي ببلزهت (2
Liability for another liability رهت ببلزهت (3
Each of these three types of sales are either delayed (nasee‟a) or immediate
(naajiz)
بيىع السيئت Buyu‟ an-Nasee‟a: Delayed Sale
البجز بيع Buyu‟ an-Naajiz: Immediate Sale
The Kinds of Sales
Sarf: currency is exchanged for a currency صشف (1
Bay‟: currency is exchanged for a priced commodity بيع (2
Salam: corporeal property is exchanged for a liability سلن (3
Bay‟ al-Khiyar: sale with an option بيع الخيبس (4
Murabaha: sale made with a stated profit الوشابحت (5
Muzayada: when bids are called, an auction هزايذة (6
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PART 2
DEFINITION OF THE GENERAL CAUSES OF THE
VITIATION IN ABSOLUTE SALES
When the cause of defect is related to the sale itself, it is due to:
1) Prohibition of the commodity itself
Riba: usury سبب (2
Gharar: hazard, uncertainty, deception غشس (3
4) Stipulated conditions that lead to one of the last two or both
simultaneously
The cause of defect may be linked to an external factor, which include:
Ghish or ghash: misrepresentation غش (1
Darar: injury ضشس (2
Chapter 1: Corporeal Property Prohibited for Sale
These are two kinds:
1) Najasa (filth)
a. Khamr (wine)
b. Mayta (carrion)
c. Khinzir (pork)
d. Asnam (idols)
2) Other than filth: such as dogs
Chapter 2: Usurious Sales (Riba)
Two types of Riba
Riba Nasee‟a (delayed) سبب السيئت (1
Riba Tafadul (stipulated excess). The word fadl, ziyada means سبب التفبضل (2
extra or more. Al-Fadl is when people are dealing with two similar
things.
The majority of scholars are of the opinion that ALL types of Riba are prohibited.
Hadeeth Ibn Abbas: The Prophet صلى هللا عليه و سلم said, “There is no
riba except in delay (nasee‟a)”. There is another hadeeth which
abrogates this hadeeth.
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Four sections of Riba
1) Things which neither excess nor delay is allowed, along with their
corresponding underlying cause (illa)
2) Things in which excess is allowed, but delay is not.
3) Those in which both are allowed
4) Things that are considered as one category and those that are not
Section 1: Identification of things which neither excess nor delay is
allowed, along with their corresponding underlying cause (illa)
Prohibition of excess (in exchange of the same category)
Hadeeth Ubada ibn al-Samit, “I heard the Messenger of Allah صلى
,prohibiting the sale of gold for gold, silver for silver هللا عليه و سلم
wheat for wheat, barley for barley, dates for dates, salt for salt,
except through equal measure and immediate exchange”.
Prohibition of nasee‟a (delay)
Hadeeth Omar bin al-Khattab, “The Messenger of Allah صلى هللا عليه و
said, „Gold for gold is riba except from hand to hand, dates for سلم
dates is riba except from hand to hand, barley for barley is riba
except from hand to hand‟”.
Prohibition of delay in the exchange of two categories with the permission of
excess in them
“Sell gold for silver as you like, but from hand to hand and sell
wheat for barley as you like but from hand to hand”.
Section 2: Identification of things in which excess is allowed, but delay
is not
This is the opinion of the author, but we have established that both types
are haram according to the hadeeth of Bilal.
According to the majority of the scholars, two similar things are not
allowed
Abu Hanifa also spoke about the measurement which is haram as well (in
addition to quality and quantity). The solution is to sell what you have
then exchange what you want.
Section 3: Identification of property in which both (excess and delay)
are permitted simultaneously
Majority of scholars say this is standard of living (barley, wheat, etc).
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Section 4: Identification of property considered as single species and
that which is not
Sub-Chapter: Sales through Usurious Means
What leads you to Riba are two things: إقالل Iqala and بيوع االجال Buyu‟ al-Ajaal
Iqala: Negotiated recession of a contract
Initial contract is rescinded for a new contract or conditions
One of the parties may regret the initial conditions
Once the person leaves the room the deal is done and it cannot be
rescinded
Recession of a contract can only be done with both in agreement
Buyu’ al-Ajal: Deferred Sales
Purchasing an item being sold with excess or loss
A person is selling something for 10 dollars, and then purchases the same
goods from him for 20 dollars on credit. Example: I will sell you this
donkey for 20 dollars on credit for one month, then I will buy it back from
you for ten dollars cash
2 out of 9 cases are disputed due to insinuated underlying intention of
riba
Questions and suggested research topics: Are these valid?
Credit card contracts with conditions of interest
Mulamasa: touching and buying is it allowed?
Buying food, and paying for it before you get the food
Internet buying
Proposition: Sale of food before Possession
Majority of scholars say it is haram
Narration of Malik from Nafi‟ from Abdullah ibn Omar, that the
Messenger of Allah صلى هللا عليه و سلم said, “He who purchases food
must not sell it till he takes possession of it”. Authentic hadeeth
reported by 6 books except Tirmidhi
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Chapter 3: Sales Prescribed on Account of Misappropriation the
Cause of Which is Gharar
Gharar: uncertainty. The seller knows the problem, or can be from the غرر
aspect of Jahl
Ghubn: to do wrong, cheat or misrepresent facts غبن
Gharar from the aspect of Jahl
Jahl or Jahala: lack of knowledge جهل و جهبلت
1. Failure to identify the subject matter of the contract, or failure to
determine the contract (Ta3een al Aqd)
2. Failure to identify the attributes of the price, quantity, or the deferred
period (delivery)
3. Failure to identify its existence, or impossibility of its acquisitions (the
obstacles of delivery), like knowing it will not arrive until a certain time,
etc.
4. From the aspect of its sound existence (its continued existence)
Gharar can be found in sales that are expressly prohibited in the shar‟ and those
which there is silence. Expressly prohibited sales (with gharar) are mostly are
agreed upon, (only the meaning of names are disputed).
Prohibited sales prescribed by the Prophet
:Al mantuq billa المنطوق بال
.Habl al-Habla: Sale of fetus in the stomach of conceiving animal حبل الحبلت .1
Sale of something before creation.
2. Sale of fruits before they are ripe.
Sale of fruit can occur before or after it sprouts. Once it comes into
existence, the sale can take place before it is picked or after.
a. Sale before picking
(1) before it ripens (all scholars agree it is prohibited)
(2) after it ripens (all scholars say this is permissible)
b. After it is picked (no dispute about permissibility)
c. Sale after its creation
(1) majority of scholars say it is permissible
(2) Other scholars say we need more details
و هببزة هالهست .3 Sale of mulamasa (touching the merchandise without
knowing the full description) and munabadha (i.e. seller wearing the
merchandise and you have to buy it )
a. Mulamasa: touching without knowing, or buying in night time, all
schools of thought agree it is prohibited due to lack of description.
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Bay‟ al-hasat: Sale by throwing stones, which is considered الحصبة .4
gambling.
5. Mu‟awama: Yearly sales. This belongs to category of sale before creation
Two sales in one transaction بيعتيي في بيعت .6
a. Exchange of two priced commodities for two prices
b. Exchange of a priced commodity for two prices
c. Exchange of two priced commodities for one price
7. Conditional sale: Sale linked to a loan
8. Sale of grain ears before they whiten
9. Sale of grapes before they blacken (i.e. unknown fruits, vegetables, etc.)
Madamin and Malaqih: Sale of fetuses and sperm of animals هضبهيي و هالليح .10
Permitting sale of fruits generally before ripening:
Kufiyeen (scholars of Kufah) use the following hadeeth as proof:
Hadeeth of Ibn Omar that the Prophet صلى هللا عليه و سلم said “He who
sells date-palms that have fertilized the fruit is for the seller,
unless the buyer has stipulated a condition to include the fruit”.
They said since it is permitted to the buyer to stipulate this condition, it is
likewise permitted to sell the fruit separately.
Issues not Expressly Covered
Issue 1: The subject-matter of sales if of two kinds
The things sold are of two kinds:
1. Things present and visible (no dispute about the validity of these
sales) 2. Things absent or impossible to see or examine (disagreement among
the fuqaha, due to the lack of knowledge of description) a. Malik: it’s permissible to sell an absent commodity (mabi’) by
description as long as the description does not change b. Abu Hanifa: it’s permissible to an absent commodity without
description, but the buyer has an option when he sees it to maintain the contract or not
c. Malik: sale of an absent commodity without description is valid on
the condition of option of examination (khiyar al-ru‟yu) d. Shafi’ee: sale is not permitted in both cases
Issue 2: Agreement that it is not permitted to sell things with a delayed
period
Issue 3: Crops growing in a single phase and those growing more than once
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Chapter 4: Sales with Conditions and Provisions
The irregularity found in these sales is from the aspect of gharar. Due to the defective nature of these sales they are considered a separate category of sales.
There is disagreement with the scholars in this issue due to the following ahadeeth:
1. Jabir said: “The Messenger صلى هللا عليه و سلم of Allah bought a she-
camel from me and stipulated, as a condition, riding it to Madina”. (Bukhari and Muslim)
a. This is only part of the hadeeth, the whole hadeeth was not taken into account. The context of the whole hadeeth must be understood.
b. This hadeeth occurred during the Hajj season, and when the
Prophet صلى هللا عليه و سلن performed Hajj which was 9 AH (end of the
life of the Prophet صلى هللا عليه و سلن, one year before he passed away)
c. Jabir ibn Abdullah al-Ansari was riding a camel in Arafat when he
saw the Prophet صلى هللا عليه و سلن. The Prophet صلى هللا عليه و سلن
understood the people and the animals. The camel was very sick
and tired. He made duaa for Jabir, hit the camel nicely and the camel started to run as if it were never sick. Jabir said the camel
never ran like that before. The Prophet صلى هللا عليه و سلن asked Jabir
to sell the camel to him, but Jabir was initially reluctant. He then
agreed, but requested to go to Madina first in order to carry the goods he was carrying, then would give the camel to the Prophet
.in Madina صلى هللا عليه و سلن
d. He made a sale with an exception استثبء istithna, and it was
understood and known from the beginning.
2. Barira that the Messenger of Allah صلى هللا عليه و سلم said: “Any
condition that is not in accordance with the Book of Allah is void, through it be a hundred conditions”. (Reported by the group)
3. Jabir said “The Messenger of Allah صلى هللا عليه و سلم forbade muhaqala,
muzabana, mukhabara, mu‟awama and thaniyya (provisions) and
exempted the „uraya”. (Muslim)
a. هى Naha: forbade. The Prophet صلى هللا عليه و سلن has the authority to
forbid things; he does not speak out of his own desire but through revelation. There are many rules in this hadeeth.
b. هحبلمت Muhaqala: crops in the field (standing crops) are bought for
grains according to a customary measure (i.e. to sell wheat in the ear, not as a seed, for grains). Muhaqala is from the word haqal (farm) and مزرعه Muzra‟a is the same as haqal. To sell a farm for
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another food. Another definition of muhaqala is renting of land (without knowing the measure of crops in it).
c. هزابت Muzabana: the selling of ripe dates for dates still on the trees.
Or, you buy a farm without knowing the measure of crops in it.
d. هخببشة Mukhabara: a share or percentage of produce is given to a
person. A farm is given to a person, and he makes an investment in it and then gets a share in the (unknown) produce.
e. عبم or ست Mu‟awama: selling ahead for years. Can only buy this
year, not years ahead.
f. يبث Thuniyya: exceptions, selling with unknown exceptions. (i.e. I
have land with palm tree, and sell this land to you except for one palm tree, without stating which one).
g. عشيب or عشيت Uraya: buying of date-palm until its fruit is ripened
(ripening means that its color becomes red or yellow, or if the fruit is fit for being eaten). It is okay to clean up the palm tree so the people can look at it.
Ibn Shubruma (not Ibn Abi Shubruma, his real name is Abdullah ibn Shubruma), was a Tab‟i from Kufa, and a judge, and has his own school of thought. His
opinion is that the sale is good, based on the first hadeeth. The sale is halal and the condition is halal.
Hadeeth Amr ibn al-„As, recorded by Abu Dawood who said, “The Messenger of
Allah صلى هللا عليه و سلم said, „Loan with a sale is not permitted, nor are two
conditions with a sale and there is no entitlement to profit without a corresponding liability for loss, nor should there be a sale in what you do
not have‟”.
Malik‟s view, the conditions are divided into three kinds:
1. Conditions that are nullified along with the sale
2. Conditions that are permitted along with the sale
3. Conditions that are nullified, but the sale is valid
4. If insisted by the stipulator nullifies the sale, but when it is given up by him the sale is valid
Malik also held the opinion that:
If the degree of implied gharar or riba is excessive: the sale is nullified and the conditions are nullified
If the degree is midway, the conditions are nullified but the sale is
permitted If the degree is insignificant, the sale is permitted and the conditions are
valid. (However if we do not accept this it is Zahd)
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Permissibility of selling with determined exemptions
Example: A person sells the fruit of his palm grove, except from certain
determined date palms
All scholars in agreement this is permissible, as long as the exemptions are specified
All scholars agree that it is not permitted to exempt an unspecified number of date palms to be determined by the buyer after the sale (this is selling something unknown by the parties)
Scholars disagreed about the man who sells a palm-grove and exempts from it a number of date-palms after the sale.
o Majority do not allow this because the quality varies
o Malik permits it o Ibn al-Qasim does not allow for date-palms but allows for sheep
Sale and hire in the same contract / Rent to buy in the same contract
There is disagreement with the scholars regarding this
Malik and his students permit it
o If the rent or wage is specified it would not be unknown The Kufiyeen and Shafi‟ee do not permit it, because the price would be
unknown
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Chapter 5: Sales Prescribed because of Harm or Fraud
The Prophet صلى هللا عليه و سلن prohibited:
An individual sale countering the sale of his brother, that he make an offer
countering the offer of his brother.
That trade caravans be received outside the city limits
That a settler sell on behalf of an inhabitant of the desert
Bids are raised (najsh)
Individual Sale Countering the Sale of Your Brother
Buyer or seller should not be harmed in any way, even if offering a better item
to the buyer.
The opinion of the scholars, regarding the meaning of the Prophet‟s صلى هللا عليه و
”words, “Do not sell counter to the sale of others سلم
Malik and Abu Hanifa: Counter sale to the sale of others and to your
brother is considered the same.
At-Thawri: a person should not come to the parties to the sale and say „I
have good better than these‟
Shafi‟ee: when the oral agreement is complete and they have not parted,
a person should not come to present the buyer with better goods. This is
based on this view that sales become binding upon parting.
Regarding countering the sale of a Dhimmi
Majority said there is no difference between a dhimmi and another person
Al-Awza‟i: there is no harm in this
We should not cheat or harm anyone, or reciprocate any cheat or harm, because
it would make us equal to them
Section 1: Going Out to Meet/Trade Caravans (Outside the city
Limits)
This is aimed at the people of the market (shopkeepers). They should not
benefit alone from the inexpensiveness of goods, to the exclusion of other
shopkeepers.
In some countries, merchandise is brought to the port, and some buyers go to
the port to purchase the merchandise before it arrives to the market. It occurs
online as well.
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Malik‟s opinion
It is not permitted to buy سلعت merchandise until it reaches the سىق market,
or close to it
If the travelers are far away in a different city or country then it is
permissible
If the sale went through it
Shafi‟ee‟s opinion
Reason for prohibition is to protect the interest of the seller, so the
advance buyer does not deceive him with market prices in the city
If the sale went through, the seller has the option of rescinding the sale or
keeping it. Abu Hanifa shares this opinion as well.
“Do not intercept the goods on the way to the market, if one obtains
something from these, at an unjust price and buys it, the seller has an
option on reaching the market”. Muslim
Transactions هعبهالث
When you hold a commodity until there is no more, so that the price :شجع
increases, and then you sell it.
Prohibition هي
Injustice: We should not cheat the buyer (i.e to buy things in advance then غبي
bring it back and sell it for the same price).
Section 2: Sale by a Settler in behalf of the Inhabitant of the Desert
The Prophet صلى هللا عليه و سلم prohibited sale by a حبضش city dweller (hadhr) to a ببد
desert dweller or villager (baad). This causes harm to the buyer because of the
possibility of deception of not knowing the market price, unless it is established.
Hadith Jabir who said, “The Prophet صلى هللا عليه و سلم said, „The urbanite is
not to sell for the ruralist, leave the people along so that Allah may
provide for some of them through others‟”. Muslim and Abu Dawood
Bukhari and Muslim هتفك or شيخبى
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Section 3: Prohibition of Raising Bids
Najsh (shaddah on noon): raising bids, when one raises the price of a جش
commodity having no intention to buy it, but to benefit the seller and harm the
buyer
The Prophet صلى هللا عليه و سلن prohibited Najsh.
Disagreement with the scholars if the sale took place
Dhahiri: the sale is prohibited and void
Malik: it is like selling a defective commodity and the buyer has a choice
to rescind or keep it
Abu Hanifa, Shafi‟ee and Imam Ahmad: the sale is valid but they are
sinners
Chapter 6: Prescription of Sale because of the Time of Prayer
When the call is heard for the prayer of the day of congregation, hasten
to remembrance of Allah and leave your trading (selling and buying).
Surat al-Jumuah (42:9)
If the Adhan is called for Jumuah
إجوبع Ijma: All the scholars agreed, that selling and buying are prohibited
If there is no call, we still know the time for Jumuah
If the sale occurred
Malik: the transaction becomes dissolved فسخ Faskh: dissolution
Shafi‟ee, Abu Hanifa and another opinion of Malik: transaction is not void
o Malik: void only for the ones on whom Jumuah is obligatory
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PART 3
REASONS AND CONDITIONS VALIDATING SALES
Chapter 1: The Contract (‘Aqd)
Element 1: The Form of the Contract (‘Aqd)
Use of words “sale” and “purchase” must be used verbally or in oral agreement,
such as “I have sold to you”, “I have bought from you”, “I have sold it to you”
Verbal language versus Expressions/Gestures (Expressions vary from place to
place, culture to culture)
Shafi‟ee: sale is concluded both by clearly stated words and an alluding
expression
Gestures alone are not sufficient
The four Imams agreed that an offer and acceptance for a sale should not be
delayed until after they have departed (cannot come back and say I accepted)
Dispute regarding the moment the sale becomes binding
Malik, Abu Hanifa and students, and jurists of Madina: Becomes binding
through acceptance even though they have not departed
Shafi‟ee, Ahmad, Ishaq, Abu Thawr, Dawood, Ibn Omar: Sale is binding
through parting. As long as they have not parted, sale is not binding or
concluded. One of them can change their mind if they want
As far as in the same place and same room, they can change their mind
(sale not binding)
Tradition of Malik from Nafi‟ from Ibn Omar that the Messenger of
Allah صلى هللا عليه و سلم said, “The two parties to the sale, each one of
them has an option (khiyar) against his counterpart, as long as
they have not parted, except in the sale with an option”. Reported
by al-Jama‟ah.
In another narration, “Except when one of them says to the other
„choose‟”
Many sale transactions are based on this hadeeth above
يا أي ها الذين آمنوا أوفوا بالعقود O you who believe! Fulfill (your) obligations. Surat al-Maidah (5:1)
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Element 2: The Subject Matter of the Contract (Ma’qud ‘alayh)
Ma‟qud „alayh, the commodity, or subject of a contractهعمىد عليت
The conditions pertaining to the subject-matter of a contract:
There must be an absence of gharar (uncertainty)
There must be an absence of riba (interest)
Gharar should be removed with respect to:
Existence
Description
Quantity
Readiness for delivery (both commodity and price)
Period of delivery (if it is a credit sale)
Element 3: Parties to the Contract
The conditions of the parties to the contract include:
1. They have full ownership or are lawful agents with power of attorney
2. They have reached the age of puberty
a. Malik and Shafi‟ee: sale is not valid if the boy has not reached the
age of puberty
b. Abu Hanifa and Ahmad: it‟s ok as long as he can distinguish right
from wrong with permission of guardian
3. Al-Aql (sanity)
If there was a forced sale
Ahmad, Malik and Shafi‟ee: the sale is not valid
Abu Hanifa: the sale is valid if there is a choice afterwards
The validity of selling and buying by a blind man
Shafi‟ee: said they need assistance
Ahmad, Malik and Abu Hanifa: transaction is valid because they are
trained
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Effectiveness of Sale by a Fuduli
Fuduli: Unauthorized Agent فضولي
He does not have any authority or right to sell
A written contract would be required
The Messenger of Allah صلى هللا عليه و سلم gave a dinar to Urwa al-Bariqi and
said, „Buy for us out of this incoming flock, a goat‟. He said, „I bought
two goats with a dinar then sold one of them for a dinar and came back
with a goat and your dinar‟. He said, „O Lord, bless him in his lawful
transactions‟
The Prophet صلى هللا عليه و سلم did not order him to purchase the 2nd goat.
Ahmad, Malik and Shafi‟ee: this is a hujjah (proof) that this kind of
transaction is valid
Abu Hanifa: Transactions of this type are not valid