Beruflich Dokumente
Kultur Dokumente
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
PART 1
DEFINITION OF THE KINDS OF ABSOLUTE SALES
Buyu: a sale, an exchange, a transaction between two individuals
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 2) Riba: usury 3) Gharar: hazard, uncertainty, deception 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: 1) Ghish or ghash: misrepresentation 2) Darar: injury
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).
Section 4: Identification of property considered as single species and that which is not
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
4. Bay al-hasat: Sale by throwing stones, which is considered gambling. 5. Muawama: Yearly sales. This belongs to category of sale before creation 6. Two sales in one transaction 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.) 10. Madamin and Malaqih: Sale of fetuses and sperm of animals Permitting sale of fruits generally before ripening: Kufiyeen (scholars of Kufah) use the following hadeeth as proof: Hadeeth of Ibn Omar that the Prophet 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.
b. This hadeeth occurred during the Hajj season, and when the
Prophet performed Hajj which was 9 AH (end of the life of the Prophet , one year before he passed away)
c. Jabir ibn Abdullah al-Ansari was riding a camel in Arafat when he
saw the Prophet . The Prophet 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 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.
d. He made a sale with an exception
understood and known from the beginning. 2. Barira that the Messenger of Allah 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 forbade muhaqala, muzabana, mukhabara, muawama and thaniyya (provisions) and exempted the uraya. (Muslim)
a.
b.
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 Muzraa is the same as haqal. To sell a farm for
another food. Another definition of muhaqala is renting of land (without knowing the measure of crops in it).
c. d.
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.
e. f.
g.
Ibn Shubruma (not Ibn Abi Shubruma, his real name is Abdullah ibn Shubruma), was a Tabi 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 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. Maliks 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)
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 Shafiee do not permit it, because the price would be unknown
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Regarding countering the sale of a Dhimmi Majority said there is no difference between a dhimmi and another person Al-Awzai: 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
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Maliks opinion It is not permitted to buy merchandise until it reaches the 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
Shafiees 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 :When you hold a commodity until there is no more, so that the price increases, and then you sell it. Prohibition Injustice: We should not cheat the buyer (i.e to buy things in advance then bring it back and sell it for the same price).
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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) Shafiee: 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 Shafiee, 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 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-Jamaah. In another narration, Except when one of them says to the other choose Many sale transactions are based on this hadeeth above
O you who believe! Fulfill (your) obligations. Surat al-Maidah (5:1) 14
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)
If there was a forced sale Ahmad, Malik and Shafiee: 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 Shafiee: said they need assistance Ahmad, Malik and Abu Hanifa: transaction is valid because they are trained
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He does not have any authority or right to sell A written contract would be required
The Messenger of Allah 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 did not order him to purchase the 2nd goat. Ahmad, Malik and Shafiee: this is a hujjah (proof) that this kind of transaction is valid Abu Hanifa: Transactions of this type are not valid
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