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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