In addition to The Accessible Conspectus, I am also finishing up a commentary for Ibn Mulaqqin’s Shāfiʿī fiqh Memorandum. This commentary is tentatively titled The Evident Memorandum. Since people often find the conditions for sales somewhat perplexing, I figured that I would take the opportunity to show some of the evidence and reasoning behind the rulings given in the previous post. The text below is from The Evidence Memorandum. The book includes documentation for all of the hadiths and passages it cites. I have removed them here.
7 Sales And Other Transactions
A sale, linguistically, is exchanging property for property. Ibn al-Rufʿah defined it as 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.
The foundation is Allah Most High saying, “…But Allah has permitted trade and has forbidden interest [ribā]…,” [Q2:275] and similar verses, as well as the well-known verses coming in this chapter, and the consensus of the Ummah.
[Sales are] valid with an offer and acceptance,…
The requirement for the offer and acceptance are out of analogy to marriage. So it is not valid to exchange by just giving the specific price without a verbal offer and acceptance. This [type of exchange] is said to be acceptable in transactions where that is customary. Many scholars preferred this opinion (including al-Nawawī) since there is no authentic text establishing that a verbal phrase is required, thus making it necessary to go back to custom, just like for other phrases.
Offers include phrases like “I sell to you,” and “I give ownership to you.” Acceptances include phrases like “I bought it,” “I take ownership,” and “I accept.”
The acceptance needs to be immediate since a delay indicates being averse to the transaction.
The acceptance needs to agree with the offer. A sale is not valid when the response to “I sell for ten partial dirhams,” is “I accept for ten complete dirhams.” – nor is the opposite.
Both the offer and acceptance need to be final and unconditional. So it is not valid if the seller says, “When the new month comes I will have sold it,” and the buyer says, “When the new months comes I will have bought it.”
It is not permissible to sell all of something except for a part that is connected to it, such as selling a sheep except for its leg. This is due to the ṣaḥīḥ ḥadīth that the Messenger of Allah ﷺ forbade selling exceptions. [Muslim transmitted it.] So if someone says, “I sell you this slave except for her fetus,” it is not valid since her fetus is part of her.
It is not permissible sell all of something except an unknown part, like “I sell you this house except for a room,” due to the inherent risk.
Nor is it permissible to exclude a benefit, such as the use of the item for a month, due to the earlier ḥadīth.
It is not valid to stipulate a condition that undermines the sale, such as selling with the condition that he does not have to surrender the item, or that the buyer cannot make use of it, or that the buyer does not sell it or rent it. These conditions all void the sale.
It is not valid to stipulate a purpose that is not entailed by the contract, like if he sold with the condition that the buyer sell him his house, or with the condition that the buyer will give him a loan. This is due to him ﷺ forbidding selling with a condition. [Al-Ṭabarānī and al-Ḥākim transmitted it.]
However, it is valid to stipulate deferring payment to a known time, since Allah Most High says, “…when you contract a debt for a specified term, write it down…,” [Q2:282]. And he ﷺ said, “Whoever pays for a thing in advance, he is to pay it in advance for a specified measure and specified weight, for a specified period.” [Agreed upon.] Also, need calls for it for the sake of transactions.
It is also valid to stipulate collateral or a guarantor since need calls for it for the sake of transactions. Both must be identified either by seeing the collateral or naming the guarantor.
It is also valid to stipulate that the transaction be witnessed since needs call for security – like with collateral. It is not necessary to identify specific witnesses.
It is valid to stipulate that a slave being sold will be set free. This is due to the ḥadīth of Barīrah (may Allah be pleased with her) established in the two Ṣaḥīḥs [al-Bukhārī and Muslim] that the Messenger of Allah ﷺ said to ʿĀʾishah (may Allah be pleased with her), “Buy her and stipulate that they get walāʾ, as walāʾ belongs to whomever set [her] free.”
It is also valid to stipulate things that can be known through their qualities, (such as writing, sewing, trade, and the like). This is due to the need for goods to circulate via identifying goods that contain the qualities that people desire. This is in contrast to things that cannot be known through their qualities (such as selling a sheep that gives such-and-such amount of milk every day) since these cannot be precisely measured, nor is one able to provide them. These are akin to stipulating a slave who writes ten pages per day.
However, it is not valid to stipulate pregnancy. So it is not valid to sell a slave or animal with the condition that it is pregnant. This is an opinion from Imām al-Shāfiʿī [qawl] or from the colleagues [wajh]. The sound opinion is that the sale and condition are valid. It is said that it is certainly valid with respect to a slave. This disagreement is based upon whether pregnancy can be known or not. If we say no, then it is invalid; if we say yes, then it is valid.
…for something that is seen first hand,…
Sales transactions involving items that have not been seen or that are absent are invalid due to the inherent risk of fraud and deceit. The Messenger of Allah ﷺ forbade every sale transactions involving risk. [Muslim transmitted it.]
It is not valid to sell dogs, wine, and filth that cannot be purified. This is because there is agreement that it is unlawful to eat filth, and whatever is unlawful to eat is unlawful to sell. He ﷺ said, “When Allah declares something unlawful to a people, He makes its price unlawful to them.” Abū Dāwūd transmitted it with an isnād ṣāḥīḥ.
It is not valid to sell insects (except for leeches), nor predatory animals unless they are useful, nor two grains of wheat, or musical instruments. The reason is that exchanging money for these things is foolish and unjust consumption of wealth. Allah Most High said, “And do not consume one another’s wealth unjustly…,” [Q2:188].
It is not possible to sell something and except its utility for a month, due to the authentic hadith that the Prophet ﷺ forbade it. [Muslim transmitted it.]
So it is not valid for someone else to buy or sell on his behalf without his permission, due to him ﷺ saying, “Do not sell what you do not posses.” Al-Tirmidhī transmitted it and said ḥasan.
The seller must be the owner who has unrestricted disposal and management of his property.
Sales are also not valid from a youth, someone insane, or someone who is suspended from transactions.
It is valid for the individual’s agent to sell on his behalf.
It is also valid for guardians to sell on behalf of their wards, provided they exercise precaution.
The authorities can also sell on behalf of a debtor who refuses to pay, though the sale must be at the fair market price.
Sales transactions involving items or services that the Sacred Law considers unlawful or filthy are invalid, such as wine, swine, musical instruments, and the like.
It is not valid to see something lost, that has run away, or that was stolen, out of forfeiting the intended purpose [i.e., ownership].
Selling property that has been stolen to someone who can retrieve it is valid since the purpose is achievable.
It is not valid to sell one of two things, due to the lack of specificity, just as it is not permissible to marry someone to one of his two daughters.
Specificity is required of both items being exchanged – unless an the item is known via its quantity, type, or qualities; either by explicit mention (e.g., “I sell you this garment for ten complete dirhams”), or through custom (e.g., “I sell you this garment for ten dirhams” where only one type of dirham is used in the land).
It is not valid for a non-Muslim to buy a Quran [musḥaf] or a Muslim [slave] (unless the Muslim is automatically set free).
This is due to the shame it involves, and because it exposes the Quran to disrespect and the slave to humiliation. The sale is not valid – just as it is not valid for a disbeliever to marry a Muslim woman.
It is unlawful to separate a parent from its child, up to the age of discernment [tamyīz], and [the sale] is void.