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Hanafi Fiqh

Book of Sales

Lesson 1: Book of Sales


Basis of a Sale:

 “Allah has permitted sales and forbidden usury” (2:275), “Oh believers, consume not
your goods between yourselves in vanity, except that there be trading on the basis
of mutual agreement.” (4:29)

 The basis of sales is thus permissibility with the presence of mutual agreement and
the absence of anything prohibited in the shari`ah.

o Principle: Anything that leads to dispute corrupts the contract.

o A contract containing any non-definition which could lead to dispute is


considered sinful (i.e. entering into the contract) even if no dispute arises.

‫ بعت واشتريت وبكل لفظ يدل على معناهما وبالتعاطي‬:‫البيع ينعقد باإليجاب والقبول بلفظي الماضي كقوله‬.
‫ فإذا وجد‬،‫ وأيهما قام قبل القبول بطل اإليجاب‬،‫وإذا أوجب أحدهما البيع فاآلخر إن شاء قبل وإن شاء رد‬
‫اإليجاب والقبول لزمهما البيع بال خيار مجلس‬
[a] Definition of a Sale:

 Linguistically, it means exchange - unconditionally - whether it is exchange of wealth


or not, material or immaterial.

 Technically, “A sale is defined as the exchange of an item of value for another item of
value.” (M: 105)1

o The Ikthiyar states it is the “exchange of an item of recognized value for an


item of recognized value…”

o An item of recognized value (mal mutaqawwam) is anything that people


recognize as having value i.e. can be used for purchase or sold, and its use as
such is permissible, e.g. pork and alcohol not considered as mal.

1
‫غي َْر ُم ْن َع ِقد‬ ُ ‫ ُمبَا َدلَةُ َمال ِب َما ِل َويَ ُك‬: ‫ ) ْالبَ ْي ُع‬105 ُ ‫) ْال َما َّدة‬
َ ‫ون ُم ْن َع ِقدًا َو‬
[b] The Contract (`aqd):

 What is the definition of a contract?

o The Majalla defines a contract as: “A contract is what the parties bind
themselves and undertake to do with reference to a particular matter. It is
composed of the combination of offer and acceptance.” (103)2

 The Offer and Acceptance are the integrals (rukn) of the contract.

o Offer: “The statement made in the first place with a view to making a
disposition of property and such disposition is proved thereby.” (M: 101)3. i.e.
any word or action that clearly affirms the initiation of a contract.

o Acceptance: “The statement made in the second place with a view to making
a disposition of property.” (M: 102) 4. i.e. any word or action that clearly
affirms the completion of a contract.

 The offer and acceptance must be unequivocally clear. Thus, the mention of it being
in the past tense. Sales can also be effected through a non-verbal exchange (ta’ati)
as long as the offer and acceptance of the exchange are clear and definite.

 Once one party makes an offer, the other party has the choice of either accepting it
(exactly as it was made i.e. cannot accept only a part of the offer to the exclusion of
another), rejecting it or making a counter-offer which consists of rejecting the
original offer and making a new offer to buy, to which the other party must respond
through one of the options mentioned above.

 The offer and acceptance must occur in the same session and anything which can be
considered as a refusal (e.g. getting up when the parties were sitting down) is
considered as such.

 If the contract is taking place in written format e.g. via email, then as long as the
offer is not explicitly retracted or rejected, it remains standing.

[c] The Transacting Parties:

 This is what the Ikhtiyar terms the shart.


 The two transacting parties must be:
o [a] Sane [b] At the Age of Discernment

2
‫ب بِ ْالقَبُو ِل‬ ِ ْ ‫اط‬
ِ ‫اإلي َجا‬ ِ َ‫ارتِب‬ ْ ‫ع ْن‬َ ‫ارة‬ َ َ‫ ) ْال َع ْق ُد ْالتِزَ ا ُم ْال ُمت َ َعاقِ َدي ِْن َوت َ َع ُّه ُد ُه َما أ َ ْم ًرا َو ُه َو ِعب‬103 ُ ‫) ْال َما َّدة‬
3 ُ‫ْ ت‬
ُ‫ب َويَثب‬ ُ ‫ف َو ِب ِه يُو َج‬ِ ‫ص ُّر‬ ِ ‫صد ُُر ِم ْن أ َ َح ِد ْال َعاقِ َدي ِْن ِِلَجْ ِل إ ْنش‬
َ َّ ‫َاء الت‬ ْ َ‫اب أ َ َّو ُل َك َالم ي‬ ِ ْ ) 101 ُ ‫ْال َما َّدة‬
ُ ‫اإلي َج‬
‫ف‬ُ ‫ص ُّر‬ َ َّ ‫) الت‬
4 ْ ْ
‫ف َوبِ ِه يَتِ ُّم ال َعق ُد‬ِ ‫ص ُّر‬ ِ ‫صد ُُر ِم ْن أ َ َح ِد ْال َعاقِ َدي ِْن ِِلَجْ ِل إ ْنش‬
َ َّ ‫َاء الت‬ ْ َ‫ ) ْالقَبُو ُل ثَانِي َك َالم ي‬102 ُ ‫) ْال َما َّدة‬
[d] The Consequence:

 Before the actual occurrence of the sale both parties have the option of going back.

o The prophetic narration in regards to this mentioned in the Ikhtiyar.

 After the occurrence of the sale both parties are bound by the contract unless there
exists an option to cancel the contract. More on this later.

o Consequence = Transfer of Ownership.

o “The effect of the conclusion of a sale is ownership.” (M: 369)

o Once the offer and acceptance take place, the sale is binding, without the
option of cancelling in the majlis (khiyar al-qabul), .

o Ikhtiyar: “The contract is completed by the offer and acceptance due to the
presence of its integrals and conditions, and the option to cancel for one [of
the two parties] is detrimental for the other since it nullifies his rights.”

o As, once an offer has been made by one party and accepted by the other
there is a transfer of ownership such that the party who accepted the offer is
now the rightful owner of the item, to allow the party who sold the item to
cancel the transaction after it has taken place would go against the quranic
verse prohibits consumption of each other’s wealth except through trade on
the basis of mutual agreement, but in this case, one party would be able to
cancel the transaction i.e. reverse it (which would be a separate transaction)
without the need for mutual agreement, hence the Hanafi’s interpret the
hadith as referring to the option of cancelling during the process of the
transaction i.e. before its conclusion, and not to the option of cancelling
before the parties get up and leave irrespective of whether the transaction
has been completed or not, as the Shafi’i’s do.

‫وال بد من معرفة المبيع معرفةً نافيةً للجهالة‬


The Item of Sale:

 This is the third element of the contract.

 It is the subject of the contract.

 Without the specification of an item, the sale is invalid.

 The Item of Sale must be:


o [a] In existence, with the exception of the manufacturing contract [b] Capable
of delivery [c] An item of value (mal) [d] an item of recognized value (mal
mutaqawwam) and [e] Known to the purchaser. (M: 197-200)

 If the item of present in the session, then it is sufficient to point to it. The Ikhtiyar
states, “If it is present it is sufficient [in lifting the possibility of dispute] to point to
it.” Also see the M: 202.

 It is necessary to identify the item in a manner that lifts non-definition (jahala) i.e.
anything that could lead to dispute. There are three levels of non-definition.

o Slight non-definition: non-definition of non-essential aspects, and it does


not lead to dispute. E.g. in the sale of a car, if the sound of the engine is
not defined (except in the case of a defect)

o Corrupting non-definition: non-definition that would lead to dispute and


hence corrupts the contract.

o Invalidating non-definition: non-definition that renders the contract


invalid i.e. as if it doesn’t exist.

 If it is absent then it must be sufficiently defined and described in a way that would
lift the possibility of a (reasonable) dispute.

o “The fact that the thing sold is known is ascertained by referring to its state
and description which distinguish it from other things.” (M: 201)

o The Ikhtiyar gives the possibility of looking at a sample as well.

‫ ومن أطلق الثمن فهو على غالب نقد البلد‬،‫وال بد من معرفة مقدار الثمن وصفته إذا كان في الذمة‬
The Price:

 It is the means to the item of sale.

 Without the specification of a price, the sale is valid but it is considered corrupt.

 The price must be set at the time of the contract and not at a later date. Doing so at
a later date corrupts the contract e.g. “We will agree on the price later.”

o “The price must be named at the time of the sale. Consequently, if the price
of the thing sold is not mentioned, the sale is voidable(corrupt/fasid).” (M:
237)
 It is necessary when agreeing on a price to clearly stipulate the amount and the
currency.

o Ikhtiyar: “To remove the possibility of dispute.”

o Ikhtiyar: Except when the land being traded in has only one currency; no fear
of dispute then if currency not stipulated.

 If currency not stipulated what is considered is the main currency of the land and the
practice of the people.

o Rulings may revolve around custom in matters not explicitly established by


the primary texts.

o If numerous equally-traded currencies in the same land then the contract is


corrupt.

o “If the price is stated to be so many gold coins in a locality in which different
types of gold coins are in circulation, without stating the particular type of
gold coin, the sale is voidable (fasid). The same rules applies to silver coins.”
(M; 240)

 The price is of two types:

o [a] Sale Price, which is what the two transacting parties agree upon, and [2]
Market Price (qima), which what the item is valued at in the market.

o If the market price is varied, the median is considered and in such cases,
experts are consulted

 Payment can be deferred. Coming up.

‫ويجوز بيع الكيلي والوزني كيالً ووزنا ً ومجازفةً؛ ومن باع صبرة طعام كل قفيز بدرهم جاز في قفيز واحد‬

 It is permitted to sell items sold by volume or weight, by either volume, weight or no


measure, except in like for like exchanges where items must be exchanged on the
basis of measurement.

 Case example: if someone buys a pile (non-defined amount) of food, with each unit
(qafiz) for one dirham, the sale is valid for one unit.

 This is the position of Abu Hanifa:


o The amount of the item is unspecified hence the total price is unknown,
therefore the sale for anything more than the amount for which the price is
specified (one unit for one dirham) is corrupted.

o Ikhtiyar: Element of uncertainty in the item of sale and price. In such a case
one turns to the minimal amount, here one measure, as this measure is
known

o Ikhtiyar: The sale is valid for one measure but the buyer has the option to
cancel due to tafarraq fi’l safaqat.

 Abu Yusuf and Muhammad disagreed:

o It does not lead to dispute.

o Based on custom (‘urf), these transactions do not lead to dispute (they’re a


common form of transaction).

o Does not consist of a major non-definition, as the item is present and an


objective stanadard for the determination of the overall amount, whatever it
may be, has been specified, hence the buyer has direct access to the item
and aware of the standard for determining the price when accepting the
offer, and if the buyer wanted the total amount to be specified, he would’ve
asked the seller to do so. Therefore, this would not lead to dispute.

o This is the fatwa position as per the Shurunbulaliyyah, al-Nahr, al-Burhan,


and the Majalla.

‫ فإن سمي جملة القفزان والذرعان‬،‫ والثياب كالغنم‬،‫ومن باع قطيع غنم كل شاة بدرهم لم يجز في شيء منها‬
‫والغنم جاز في الجميع‬

 Whoever buys a collection of sheep, with each sheep for a dirham, this isn’t valid for
even one sheep. However if one mentioned the total number of sheeps, units or
length then the sale is valid.

 The above is the position of Abu Hanifa:

o Ikhtiyar: The whole sale is corrupt because of the disparity present in the
herd i.e. difference in physical anatomy of sheep.

o Ikhtiyar: “And according to the two [companions] is it valid in the whole


herd.”

o ^ Same reason given as for the case above.


 This is the fatwa position.

 The selling of cloth in such a way takes the same ruling.

‫ وكذلك الشجر في بيع األرض‬،‫ومن باع دارا ً دخل مفاتيحها وبناؤها في البيع‬
 “The sale includes everything which by local custom is included in the thing sold,
even though not specifically mentioned.” (M: 230)

 “Things which are considered to be part of the thing sold, that is to say, things which
cannot be separated from the thing sold, having regard to the object of the
purchase, are included in the sale without being specifically mentioned.” (M: 231)

 However, the fruits of the tree or crops on a land do not enter except with
specification. They belong to the seller by default.

‫ وإن شرط تركها على الشجر فسد البيع‬،‫ ويجب قطعها للحال‬،‫ويجوز بيع الثمرة قبل صالحها‬
 Ikhtiyar: “Because it is like lending or leasing in the sale and this will be akin to
having two contracts in a single contract, which is prohibited.”

 Muhammad permitted it though based on custom and juridical preference (istihsan).


Ibn `Abidin seems to lean towards this position.

ً‫ ويستثني منها أرطاالً معلومة‬،ً‫وال يجوز أن يبيع ثمرة‬.

 Lubab: However, this is permitted based on the principle, “Whatever is permitted to


stipulate in a contract is permitted to make an exception from the contract.”

 The Ikhtiyar mentions something similar.

‫ وال يجوز ذلك في المسيل‬،‫ والباقالء في قشره ويجوز بيع الطريق وهبته‬،‫ويجوز بيع الحنطة في سنبلها‬
 Ikhtiyar: “Likewise sesame, rice, walnuts, and almonds… because it is an item (mal)
benefitted from and thus permitted to sell.”

 Sufficiently known and does not lead to dispute.

‫ إال أن يكون مؤجالً؛ وإن باع سلعةً بسلعة أو ثمنا ً بثمن سلما معا‬،ً‫ومن باع سلعةً بثمن سلمه أوال‬
 It is permitted to defer payment if the period of deferral is known.
 “A sale may be concluded in which payment of the price is deferred and is made by
installments.” (M: 245)

o The default, however, is payment upfront. This is affirmed by indication


(dalala)

o Custom (`urf) is stronger than indication (dilala), and explicit (sarih) deferral
for a known period is stronger than custom.

o Deferral for an unknown period of time corrupts the contract. See M: 248.

‫وال يجوز بيع المنقول قبل القبض‬

 Ikhtiyar: This is because of the possibility of it perishing before it is taken possession


of.

 Ikhtiyar: “Because the Prophet (Allah bless him and grant him peace) ‘interdicted the
sale of what was not possessed.’”

 There is an element of gharar (deceptive uncertainty) here.

‫ويجوز بيع العقار قبل القبض‬

 This is the position of Abu Hanifa and Abu Yusuf.

o It is commonly safe from perishing and free of gharar.

o Actual and Effective possession.

 Muhammad said it was impermissible unconditionally and considered the prophetic


prohibitions relating to the issue as being general.

‫ويجوز التصرف في الثمن قبل قبضه‬

 Ikhtiyar: The price “does not become specified except through specification.”

 If it perishes its like can be given.

o No deceptive uncertainty involved.

‫وتجوز الزيادة في الثمن والسلعة والحط من الثمن ويلتحق بأصل العقد‬


 The contract can be adjusted by mutual agreement.
‫ومن باع بثمن حال ثم أجله صح‬
 As long as the deferral period is known and the subsequent contract sound.

 Deferral between debts and loans – will take in the chapter on riba.

‫ومن ملك جاريةً يحرم عليه وطؤها ودواعيه حتى يستبرئها بحيضة أو شهر أو وضع حمل؛ ويجوز بيع‬
‫ ويجوز لهم بيع الخمر‬،‫ وأهل الذمة في البيع كالمسلمين‬،‫الكلب والفهد والسباع معلما ً كان أو غير معلم‬
‫والخنزير‬

 Ikhtiyar: Because these animals are ones benefited from, such as a dog for the
purpose of protection.

 An item can be of [a] No Value [b] Value and [c] Recognized Value.

o An Item of no value is invalid to sell.

o An item of value but not recognized value is not valid for Muslims to sell or
buy.

o An item that is of recognized value is valid for Muslims to sell or buy.

 The sale of pig and wine is thus invalid for Muslims. However, it is permissible for
non-Muslims because it is among the most valuable of things to them.

 More on this in the section of corrupt and invalid sales.

‫ ويثبت له خيار‬،‫ وسائر عقوده باإلشارة المفهومة؛ ويجوز بيع اِلعمى وشراؤه‬،‫ويجوز بيع اِلخرس‬
‫ وفي العقار بوصفه‬،‫ ويسقط خياره بجس المبيع أو بشمه أو بذوقه‬،‫الرؤية‬.
 The blind person has the option of inspection because he has not seen the item of
sale.

 “The object of the option of inspection is to ascertain the nature of the thing sold
and the whereabouts thereof.” (M: 323)

 “If a blind person touches anything the nature of which can be ascertained by means
of the sense of touch, and smells things the nature of which can be ascertained by
means of the sense of smell, and tastes things the nature of which can be
ascertained by means of the sense of taste, his right of option is destroyed. That is to
say, if he touches or smells such things and afterwards purchases them, the sale is
valid and irrevocable.” (M: 331)
 What counts in the shari`ah are meanings, not merely forms.

 More on options later.

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