Detailed Lesson Outline

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.

:
.

[a] Definition of a Sale:

Linguistically, it means exchange - unconditionally - whether it is

exchange of wealth or not.

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

[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

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: ( 105
)

2
( 103

thereby. (M: 101)3

o

Acceptance: The statement made in the second place with a

view to making a disposition of property. (M: 102) 4

The offer and acceptance must be unequivocally clear. Thus, the

mention of it being in the past tense.

[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

[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.

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

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.

The Item of Sale:

3











( 101

4
( 102










)

This is the third element of the contract.

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.

If it is absent then it must be sufficiently defined and described in a

way that would lift the possibility of a 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)

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

The Price:

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. (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.

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.

If numerous equally-traded currencies in the same land then the

contract is corrupt.

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. 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.

Payment can be deferred. Coming up.

This is the position of Abu Hanifa.

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.

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

Abu Yusuf and Muhammad disagreed:

o

It does not lead to dispute.

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

al-Burhan, and the Majalla.

The above is the position of Abu Hanifa:

o

Ikhtiyar: The whole sale is corrupt because of the disparity

present in the herd.

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

whole herd.

This is the fatwa position.

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

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.

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.

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.

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.

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)

Custom (`urf) is stronger than indication (dilala), and explicit

(sarih) deferral for a known period is stronger than custom.

Deferral for an unknown period of time corrupts the contract. See

M: 248.

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.

This is the position of Abu Hanifa and Abu Yusuf.

o

It is commonly safe from perishing and free of gharar.

Actual and Effective possession.

Muhammad said it was impermissible unconditionally and considered

the prophetic prohibitions relating to the issue as being general.

Ikhtiyar: The price does not become specified except through

specification.

If it perishes its like can be given.

No deceptive uncertainty involved.

The contract can be adjusted by mutual agreement.

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.

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.

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

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.

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.