7 Selling And Other Transactions
Something to be aware of is that describing a transaction or contract as “permissible” indicates its validity. It does not necessarily indicate that everything related to the contract is lawful. This is in contrast to actions, where “permissible” indicates lawfulness.
7.1 Types of Sales
A sale, linguistically, is exchanging one property for another property. Its technical definition in fiqh is exchanging one property that is subject to disposal for another property that that is subject to disposal, with an offer and an acceptance, in a manner that has been permitted for it to be done. An exchange can involve items or services. For example, someone might sell a stick of gum for ten cents, or do laundry for someone else for a week in exchange for a book. In the first example we exchange a physical item for a physical item; in the second we exchange a service for a physical item.
The textual foundation for sales is from the Quran. Allah Most High says, “…But Allah has permitted trade and has forbidden interest [ribā]…,” [Q2:275].
Throughout the rest of this book, there will be more emphasis on integrals. These integrals are the essential elements that must be present for an action, contract, or transaction to be valid. Each integral has conditions that must be fulfilled for the integral to be considered present. These integrals and their conditions are usually the very first things to look at whenever we have a real-world event and want to identify what it corresponds to in the Sacred Law, and its status. The integrals and conditions also help us focus on what features of a real-world event are legally significant.
The basic text of the Ultimate Conspectus does not always explicitly enumerate integrals. So I will mention them from now on whenever appropriate before commenting on the basic text. I will usually just mention the integrals and then leave it to the reader to connect the rest of the text to the integrals. But I will start things off with an exception since sales are the standard reference point for almost all other transactions.
The integrals of a sale include the two transactors, the two items being exchanged, and the verbal agreement.
The two transactors are the seller, and the buyer. Each must fulfill certain conditions. The first two conditions are having unimpaired disposal over the property; and the absence of unjustified coercion. The third condition is that the person for whom a muṣḥaf or Muslim slave is purchased is a Muslim – unless the slave will be freed upon purchase. The fourth condition is that the purchaser of weapons not be an aggressor.
The objects of the exchange are the thing being sold, and its payment. Each must fulfill certain conditions. The first two are that the items are pure or capable of being purified, useful for something lawful. The third is that the item is something that its new owner is capable of obtaining. The fourth is that the items are subject to the authority of the transactors. And the fifth is that the items are known in their entity, quantity, and qualities.
The verbal phrase agreement includes the offer, and the acceptance. Each must fulfill certain conditions. The first condition is the absence of an interruption by a long pause or external words. The second is that the offer and acceptance are congruent. The third is that the transaction is not contingent upon something external to the sale, nor limited to a given time limit.
We can now begin with the material from The Ultimate Conspectus.
Selling is three types of transactions.
The first type of sale is selling an item that is seen first-hand. It is permissible. Here both items have been identified and seen by both the buyer and the seller, so each party knows what they will be getting. An example of this type of sale is buying a newspaper for a dollar where both the buyer and the seller have seen the newspaper and dollar that are being exchanged.
The second type of sale is selling something based on guaranteed attributes. It is permissible if the item’s attributes are found to be as described. Here one of the items being exchanged has not been physically seen, although it has been identified through its description. The sale is permissible if this item ends up being as it was described. An example of this type of sale is when someone calls up a used bookstore and asks the seller if they have a particular title. The seller goes to look and comes back with a particular book in hand that he then describes to the buyer. He describes it by mentioning its title, authors, whether hard or soft cover, its publisher, the year of its publication, and its condition. The sale is valid if the buyer receives a book that matches that description.
The third type of sale is selling an item that is not present and not seen first hand. It is not permissible, and neither is it valid. Here one of the items has not been seen by the seller nor the buyer, so neither one knows its identity. An example is someone gives Aḥmed a sealed box that he says contains a chair. Aḥmed does not need a chair, but he does need a box. He decides to sell the chair without ever even looking in the box. Someone with desperate and pressing need for a chair buys it without looking in the box. Here neither the seller (Aḥmed) nor the buyer has seen the chair. And there might not even be a chair inside the box. This sale is not permissible.
Not every item is lawful and valid to sell. It is permissible to sell all items that are able to meet three conditions.
The first condition is that the item is pure or can be purified by washing. So while you cannot sell cow manure since it is impure and cannot be purified by washing, you can sell boots that have cow manure on them since washing them with water can purify them.
The second condition is that the item is useful in a way that is sanctioned and permitted by the Shariʿah. This includes animals that are edible, or can be trained for hunting. It also includes useful animals, like cats, birds, and hedgehogs. It also includes herbs that have nutritional or medical benefit.
The third condition is that the item is fully-owned or under the authority of the person selling it. So the item must be sold by the person who owns it or their appointed agent (see section 7.13).
A sale is not lawful and permissible unless the sale item is pure, useful, and fully-owned. It is not valid to sell an item that is not able to meet all three of those conditions. So it is not valid to sell an item that is filthy and cannot be cleaned when washed with water, such as manure, dogs, or pigs. It is not valid to sell an item that is useless, such as a single grain of rice. It is also not valid to sell an item that seems useful, but its use is not sanctioned by the Shariʿah, such as musical instruments. It is also not valid to sell an item when one lacks ownership or authority to do so, such as selling stolen goods.
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