GHARAR INTRODUCTION: Gharar is one of the important element which could render the transaction void.

It is external prohibition attributed that invalidates the contract. LITERAL MEANING ON GHARAR: It means Risk, Uncertainty or Hazard Taghrir being the verbal noun of gharar is to unknowingly expose oneself or ones property to jeaopardy. 1 It includes such element as doubt, suspicion, uncertain conditions, the absolute lack of knowledge about and in determinability of the basis elements of the subject matter. DEFINITIONS OF GHARAR: A contemporary scholar Sheikh Wabah Al-Zuhaily defined gharar in the following terms: A contract, which contains a risk to any one of the parties which could lend to his loss of properties.2 Gharar is defined by the scholar Zuhayli (Financial Transactions in Islamic Jurisprudence, Vol. 1, p. 84) as a sale of (i) that which is not known to exist or not, (ii) whose measure ist not known to be large or small, or (iii) that is undeliverable. And he cites Professor Zarqa, who considers a sale of probable items whose existence or characteristics are not certain, due to the risky nature that makes it similar to gambling. According to Imam al-Sarkhsi: o Gharar takes place where the consequences of transaction remain unknown.3 According to Ibn-Hazim: o Gharar is sales occurred where the purchaser does not know what he has bought and the seller does not know what he has sold. 4 According to Ibn-Abidin: o Gharar is uncertainty about the existence of the subject matter of sale. 5

Mohammad Siddiq Darir, al-Gharar fi al-Uqud wa Atharuhu fi al-Tabiqat al-Mu asirah, p.10. Al-Zuhayl, W. 1997. Al-Fiqh Al-'Islam wa 'Adillatuh. Damascus: Dar Al-Fikr. Fourth revised edition 3 Sarakshi, Abu Bakr Muhammad Ibn Ahmad, al-Mabut, Beriut:Dar al-Marif, 1978, vol. 10, p. 194. 4 Ibn Hazm, al-muhallah, Dar al-Afaq al Jadidah, vol. 8, pp.343-389. 5 Ibn Abidin, Radd al-Mihtar, vol. 4, p.357.
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Ibn-Qayyim defines gharar as: o Gharar as being subject matter, the vendor is not position to hand over to the buyer whether the subject matter exists or not.5 According to Ibn-Rushd: o Gharar is to be found in contracts of sale when the seller suffers a disadvantage as a result of his ignorance, with regard to price of the article or the indispensable criteria relating to the contract or its object or quantity or time of delivery.6 According to one eminent modern jurist Sanhuri: o He is of the openion that lack of knowledge about the material terms of contract is the distinct feature of a gharar contract. He says that gharar takes place in the following circumstances: o When it is not known whether th subject matter exists; o If it exists at all, whether it can be handed over to the buyer; o When want of knowledge affects the identification of the genus or species of subject matter; o When if affects its quantum, identity or necessary conditions; and o When it relates to the date of a future performance.7 Al-Qarafi defined gharar as: "that which has a pleasant appearance and a hated essence". A more explicit definition by Professor Mustaf.a Al-Zarq.a is the following: gharar is the sale of probable items whose existence or characteristics are not certain, due to the risky nature which makes the trade similar to gambling.

The origin of gharar can be divided into two categories, namely: tadlis (cheating in business) and ghabn (to deceive), as noted by the Encyclopedia of Jurisprudence (vol.21, CDROM version, Cairo: Harf, 1998)

FORMS OF GHARAR ACCORDING TO IBN JUZY: Ibn Juzay , a Maliki jurist, has given a list of ten cases, which constitute in his view a forbidden gharar: Difficulty in putting the buyer in possession of subject matter. Example: sale of a stray animal or the unborn offspring when the mother is not part of the sale. Want of knowledge with regard to the price and the subject matter. Example: the vendor saying to buyer, I sell you what is under my sleeve. Want of knowledge with regard to the characteristics of the subject matter.

Example: the vendor saying to the potential buyer: I sell u a piece of cloth which is in my home. Another example is the sale of an article without the buyer inspecting or the seller describing it. Want of knowledge with regard to the quantum or the piece or the quantity of the subject matter. Example: the offer to sell at todays price or at the market price. Want of knowledge with regarding the date of future performance. Example: An offer to sell when a particular person entre the room or when a particular person dies. Two sales in one transaction. Example: Selling one article at two different prices, one for cash and other for credit, or selling two different articles at one price: one for immediate remittance and the other for a deferred payment. Sale of what is not expected to revive. Example: Sale of a sick animal. Bay al hasat, which is a type of sale whose outcome is determined by throw of a stone. Bay al munabadhah; a sale performed by the vendor throwing a cloth at the buyer and achieving the sale transaction without giving the buyer the opportunity for properly examining the object of sale. Bay al mulamasah, where the bargain is struck by touching the object of the ale without examining it.6 FORMS OF GHARAR TRANSACTION ACCORDING TO SIDDIQ AL-DARIR: Siddiq al-Darir an eminent modern scholar of shariah has givemn a detailed list of transaction that involve element of gharar. Gharar in his view sometimes relates to the form of a contract and sometimes to its subject matter.7

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Ibn Juzy, Qawanin al-Ahkam al-Shariyyah, pp.282,283. Darir, al-Gharar fi al-Uqud, pp.13-30.