Book of Selling and Commercial

Transactions

Forbidden Sales

The Book of Dhihar

Glossary


Forbidden Sales

a. (Please refer to the chapter on ribâ [usury] for a detailed discussion of the usurious sales.)

b. Gharar (undue risk taking): Gharar could be in the item sold (see section 2b below) or in the sale procedure. Gharar in the sale procedure includes sale by mere touching, mutual casting, or throwing stones. In these cases, people used to combine the sale with a gambling-like game. The sale would become binding if customers touched the sale item, tossed different sale items at one another, or threw a pebble at the merchandise and it fell on a particular item. (Note that Imam Ibn Taymiyah was of the view that all gharar is ultimately about the object of sale, not the process.)
c.  Ghabn (inequity), such as transactions under duress, those that involve cheating, and those with unequitable conditions.


2) Sale impermissible because of the item sold: a.       Inherently impermissible:                                       

i.  Useless                                     ii.     Has haram use only:

1.   Najis: e.g., khamr (wine), carcasses

2.   Not najis (e.g., idols)

b.   Haram to sell due to other factors:                                

i.  Gharar: non-existent, absent, unknown, unspecified, undeliverable items.

Imam an-Nawawi said in his commentary on Ṣaḥeeḥ Muslim:
“Countless types of sales are in this category [gharar in the item sold]. Examples of these would be: selling a runaway slave; selling items which are non-existent, unknown, undeliverable, or not fully owned by the seller; selling fish in a large body of water, milk in an udder, or a fetus in the womb; selling an undefined part of a heap of food or an undefined garment out of many… Some gharar may be tolerated for a need, as in the case of not being able to see the foundation of the building, or when one sells a goat with milk in its udder…, or the lining of a coat …”
ii.   Not owned by the seller:

1.   Wrongfully misappropriated, taken by force, stolen, and so on.

2.   Owned by someone other than the seller, his or her authorizer, or one in his or her custody.

1- What one does not own, without the permission of its owner, unless the property is in one’s custody. 779

مَا لَيْسَ بِمَمْلُوْكٍ لِبَائِعِهِ، إِلاَّ بِإِذْنِ مَالِكِهِ، أَوْ وِلاَيَةٍ عَلَيِهِ.

iii.  Leads to evil:

Like selling grapes to a wine factory or weapons to a warring enemy.
3) Sales impermissible because of a factor extraneous to the contract and item sold, and those include:
i. Sales that compromise our obligations towards the Creator, such as the sales conducted during the time of Jumu‘ah (Friday congregational prayer).

ii. Sales that compromise our obligations towards the creations, such as the socially irresponsible sales: a sale where, after the seller has already shown approval of the first buyer’s bid, a second buyer outbids the first; interception of goods (before they reach the market); provocation (raising the bid without an intent to buy).

These are examples of unethical sales that are socially irresponsible.

Another way of classification is to consider a sale valid if it fulfilled the pillars and conditions of a valid sale and was free of any hindrances to validity. Here is a list of these summarized from (A/SM): Pillars: 1- two contracting parties, 2- the object of sale, and 3- the format of offer and acceptance, whether it was verbal or non-verbal.

Conditions: 1- the maturity of the contractors, 2- their mutual agreement, 3- the object being sellable, 4- owned by the seller, 5- deliverable, and 6&7- known (as well as the price) to both parties. Hindrances: sale during a forbidden time like the time of Jumu‘ah, or one that leads to evil or usury, or one that destroys the social fabric, like outbidding and provocation, as well as sale by a town resident on behalf of a nomad.

779. For the Prophet (SA) said to Ḥakeem ibn Ḥizâm:

“Do not sell what you do not possess.” (D, T)

لَا تَبِعْ مَا لَيْسَ عِنْدَكَ

This principle guards against usurious financing tricks where the sale is not intended. For example, a financier sells property in the

2- It is also impermissible to sell: Something useless such as insects. 780

وَلاَ بَيْعُ: مَا لاَ نَفْعَ فِيْهِ كَالْحَشَرَاتِ.

780. For Allah said:

{O you who have believed, do not consume one another’s wealth unjustly…} (an-Nisâ’ 4: 29)

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ...

Forbidden Sales

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