Book of Selling and Commercial

Transactions

Forbidden Sales Continued

Glossary

Forbidden Sales Continued

3- Something of unlawful benefit, such as wine or carcasses. ⁷⁸¹

وَلاَ مَا نَفْعُهُ مُحَرَّمٌ، كَالْخَمْرِ وَالْمَيْتَةِ.

possession of X to Y before purchasing it from X, thereby avoiding any liability for the loss of the property, which will be the responsibility of X until Y acquires it. The financier in this case has traded money for money with a profit, without ever being the responsible owner of a commodity. [See the chapter on agency (wakâlah) for transactions of an unauthorized agent (taṣarruf al-fuḍooli).]
Also, of the benefits of this prohibition is the removal of undeserving intermediaries between the producer and consumer.

781.

Two men told me that they went to the Prophet (SA) during the Farewell Pilgrimage, while he was distributing the zakat, and they asked him for some of it. He looked them up and down and saw that they were strong and able-bodied. He said to them, “If you wish, I will give you some, but those who are rich, or strong and able to earn, have no share in it.” (D – from ‘Ubaydullâh ibn ‘Adiy. Nawawi: S)

عن عبيد الله بن عدي قال: أخبرني رجلان أنهما أتيا النبي في حجة الوداع وهو يقسم الصدقة فسألاه منها فرفع فيهما البصر وخفضه فرآنا جلدين فقال: إن شِئتُما أعطَيتُكُما ولا حَظَّ فيها لغَنِيٍّ ولا لِقَوِي مُكتَسِب.

4- Something non-existent, such as the fetus one’s female slave is expected to conceive, ⁷⁸² or the fruits one’s tree will bear.

وَلاَ بَيْعُ مَعْدُوْمٍ، كَالَّذِيْ تَحْمِلُ أَمَتُهُ أَوْ شَجَرَتُهُ.

قال رسول الله: إِنَّ اللَّهَ وَرَسُولَهُ حَرَّمَ بَيْعَ الْخَمْرِ وَالْمَيْتَةِ وَالْخِنْزِيرِ وَالْأَصْنَامِ فَقِيلَ يا رَسُولَ اللَّهِ أَرَأَيْتَ شُحُومَ الْمَيْتَةِ فإنه يُطْلَى بها السُّفُنُ وَيُدْهَنُ بها الْجُلُودُ وَيَسْتَصْبِحُ بها الناس فقال لَا هو حَرَامٌ ثُمَّ قال رسول اللَّهِ عِنْدَ ذلك قَاتَلَ الله الْيَهُودَ إِنَّ اللَّهَ عز وجل لَمَّا حَرَّمَ عليهم شُحُومَهَا أَجْمَلُوهُ ثُمَّ بَاعُوهُ فَأَكَلُوا ثَمَنَهُ.

The Messenger of Allah (SA) used to mention certain infractions of the law and inequities committed by the People of the Book (the Jews and Christians) to warn Muslims against doing the same with the commands of God. This does not mean that the good qualities of people of other religions are ignored. Note, for example, how Allah (ST) points out the quality of honesty:

{Among the People of the Book are some who, if entrusted with a hoard of gold, will [readily] pay it back; others who, if entrusted with a single silver coin, will not repay it unless thou constantly stoodest demanding...} (Âl ‘Imrân 3: 75)*

وَمِنْ أَهْلِ الْكِتَابِ مَنْ إِن تَأْمَنْهُ بِقِنطَارٍ يُؤَدِّهِ إِلَيْكَ وَمِنْهُم مَّنْ إِن تَأْمَنْهُ بِدِينَارٍ لاَّ يُؤَدِّهِ إِلَيْكَ إِلاَّ مَا دُمْتَ عَلَيْهِ قَائِمًا...

* Translation from Ali, The Meaning of the Holy Qur’an. (Editor)

782. Please see the appendix at the end of the book on the issue of slavery in Islam. In addition to the issues mentioned in that note, I would like to stress the following five points:

5- Something unknown, such as the

وَلاَ مَجْهُوْلٍ، كَالْحَمْلِ.

(1) Slavery in Islam was never a racist practice. Slave owners ranged from white to black in complexion, and slaves similarly ranged from white to black.
(2) Islam gave slaves a way out of bondage through mukâtabah (contractual agreement with the owner). Islam made the help of a mukâtib (a slave seeking freedom in this manner) the responsibility of the entire society. By this, Islam added to the many avenues it legislated for the freeing of the slaves.
(3) All sources of slavery were banned by Islam except the enslavement of prisoners of war, which was a common practice of the time, owing to the fear of their regrouping if they were released, as well as the inability of armies during those times to maintain a large body of prisoners. Their temporary enslavement was a means by which their lives were spared. Islam’s position was within that context of reciprocation, which is a recognized principle in foreign relations.
(4) Muslim nations have recognized the banning of slavery in modern times, and the Ottoman caliphate signed a treaty to that effect. We are bound by our covenants as long as they are not breached by the other parties
(5) The child of a female slave was also considered to be a slave unless the child’s father was the slave’s owner, in which case the child would be free. The slave woman could not be sold to anyone else, and she would be free upon her master’s death.
What is referred to in Ibn Qudâmah’s text here is the case in which the slave woman’s child is not her master’s. It is also important to mention here that the Messenger of Allah (SA) prohibited separating a mother from her slave child. Abu Moosâ reported that the Prophet (SA) said:

“May the one who separates a mother from her child or a brother (or sister) from his sibling be cursed.” (T, Ma, and classed as sound by al-Ḥâkim)

لَعَنَ رسُولُ اللَّهِ من فَرَّقَ بين الْوَالِدَةِ وَوَلَدِهَا وَبَيْنَ الْأَخِ وَبَيْنَ أَخِيهِ.

fetus in the womb.

6- Something absent that has not been described or previously inspected. ⁷⁸³

وَالْغَائِبِ الَّذِيْ لَمْ يُوْصَفْ، وَلَمْ تَتَقَدَّمْ رُؤْيَتُهُ.

7- Something undeliverable, such as a runaway slave, stray livestock, birds in the sky, or fish in the water. ⁷⁸⁴

وَلاَ مَعْجُوْزٍ عَنْ تَسْلِيْمِهِ، كَالآبِقِ، وَالشَّارِدِ، وَالطَّيْرِ فِي الْهَوَاءِ، وَالسَّمَكِ فِي الْمَاءِ.

8- Something that has been unlawfully appropriated by force, except to the one

وَلاَ بَيْعُ الْمَغْصُوبِ، إِلاَّ لِغَاصِبِهِ، أَوْ مَنْ يَقْدِرُ عَلَى أَخْذِهِ

Voluntary charity may be given to such people and to others. ⁷⁸⁵

فَأَمَّا صَدَقَةُ التَّطَوُّعِ، فَيَجُوْزُ دَفْعُهَا إِلَى هَؤُلاِءِ،

783. As in selling an item without accurately describing it. Sale of absent merchandise items:

If they were described, then it is a valid sale according to (A) + (+H, +M, +s). (A) limits it to those items that can be sold via a salam contract. (A/SM)

(-H) gives the buyer the right of return whether the description was accurate or not.

(A) + (+M) give the buyer the right of return only if the seller’s description was inaccurate.

The basis for accepting such sales is the general permissibility of sales by default, and the report that ‘Uthmân and Ṭalḥah exchanged two houses, one of which was in Madinah and the other in Kufa. ‘Uthmân claimed he had the right of return upon inspection (of the house in Kufa), and when they asked Jubayr ibn Muṭ‘im to judge between them, he supported ‘Uthmân.

The basis for rejecting these sales is that they contain gharar. The scholars who allow the sale of absent items when they are well described maintain that the description makes the gharar tolerable. Online sales belong to this category. They are usually well described, so they would be valid, according to the majority.

"Charity is not permissible for us, and the freed slave of a people is one of them." (T – from Abu Râfi‘. T:S)

إنَّ الصَّدَقَةَ لَا تَحِلُّ لَنَا، وَإِنَّ مَوْلَى الْقَوْمِ مِنْهُم.

784. The prohibitions 4, 5, and 6 are due to the gharar involved in those transactions.

who misappropriated it or to one capable of seizing it from him or her. ⁷⁸⁵

مِنْهُ.

9- Something not specifically designated, such as a slave or a sheep from one’s herd, unless it is a property whose parts are similar, as in the case of a qafeez [a unit of measurement] from a heap (of produce).

وَلاَ بَيْعُ غَيْرِ مُعَيَّنٍ، كَعَبْدٍ مِنْ عَبِيْدٍ، أَوْ شَاةٍ مِنْ قَطِيْعٍ إِلاَّ فِيْمَا تَتَسَاوَى أَجْزَاؤُهُ، كَقَفِيْزٍ مِنْ صُبْرَةٍ.

The Prophet (SA) forbade: Sale by mere touching or mutual casting, as well as sale by throwing stones. ⁷⁸⁶

وَنَهَى رَسُوْلُ اللهِ عَنِ: الْمُلاَمَسَةِ وعَنِ الْمُنَابَذَةِ، وَعَنِ بَيْعِ الْحَصَاةِ.

Sale by one outbidding one’s brother ⁷⁸⁷ [that is, another buyer]. ⁷⁸⁸

وَعَنْ بَيْعِ الرَّجُلِ عَلَى بَيْعِ أَخِيْهِ.

785. In other words, the rightful owner selling the misappropriated property to the one who misappropriated it or to one who can seize it from him or her. The permission here to sell to the one who wrongfully seized a property by force is not to acquit the offender of guilt; it is to help the rightful owner settle the matter in the least harmful way if he or she is unable to retrieve the property from the one who seized it. Note also that the one who misappropriated the property may mistakenly consider himself or herself to be entitled to it. Islamic law favors conciliatory settlements over protracted, futile disputes.

786. Because that is a type of gharar, as discussed earlier. There is also a clear prohibition of these sales by the Messenger of Allah (SA), as reported by Muslim from Abu Hurayrah.

787. In the hadiths concerning the ethics of transactions, the use of the word ‘brother’ or even ‘Muslim’ is inconsequential, as indicated by the vast majority ‎of scholars. The latter is often mentioned because that is the likely ‎situation: a Muslim transacting with other Muslims. These terms could also have been used to ‎make the act sound more repulsive. However, it is the consensus of all scholars that injustice is haram ‎against Muslims and non-Muslims alike. [See al-Majmoo‘ by Imam an-Nawawi (d. 676 AH/ 1277 CE), al-Muneeriyah edition, 11: 306, for a detailed discussion of this by Imam Taqi ad-Deen as-‎Subki (d. 756 AH/ 1355 CE, may Allah bestow mercy on him). Imam as-Subki wrote some sections in the book after Imam an-Nawawi passed away without completing it.]‎ Unless proven otherwise, the use of the term ‘brother’ also applies, by default, to females. This was true during the time of the Prophet (sa), and it is true today and at all other times, by consensus and by the common usage in Arabic.

788. For the Prophet (SA) said:

“Do not outbid one another, and do not intercept goods before they reach the market.” (Ag – from Ibn ‘Umar)

لَا يَبِيعُ بَعْضُكُمْ على بَيْعِ بَعْضٍ ولا تَلَقَّوْا السِّلَعَ حتى يُهْبَطَ بها إلى السُّوقِ.

This does not refer to the outbidding that happens in an auction, which is permissible. What is forbidden is to outbid another buyer after the sale was finalized or even after the seller has simply shown approval of the bid. The vast majority, including the four Imams, considered sales at auctions valid. Their evidence is the lack of proof for their prohibition, for in auctions, the seller would have not accepted the bid of the previous bidder when the next bidder made a (higher) bid.

It was also reported from Anas ibn Mâlik that, “The Messenger of Allah (SA) sold a rug and a cup in an auction. He asked: Who will buy this rug and cup? A man replied: I will take them for a dirham. The Prophet (SA) asked: Who will offer more than a dirham? Another man gave him two, and he took the goods.” (T. T: S)

Note that transactions in Islam need to be equitable, transparent, accountable, and socially responsible; all of that within a framework of a teleological worldview that recognizes devotion to God as the ultimate good. The prohibition of outbidding is to minimize the

Sale by a town resident on behalf of a nomad, by being a broker for him or her. ⁷⁸⁹

وَعَنْ بَيْعِ حَاضِرٍ لِبَادٍ، وَهُوَ أَنْ يَكُوْنَ لَهُ سِمْسَارًا.

F potential for hostility in the marketplace; to stress that one should wish for one’s brother what one wishes for oneself, which strengthens the social matrix of society; and to prevent greed from compromising the feelings of brotherhood among people.

789. This prohibition is aimed at brokers who take a commission and charge a higher price for the goods, causing buyers to pay more than they normally would for the goods. Bukhari and Muslim reported from Ibn ‘Umar, Abu Hurayrah and Ibn ‘Abbâs that the Messenger of Allah (SA) forbade a sale made by a town resident on behalf of a nomad. Ibn ‘Abbâs explained that this means acting as a broker for him or her. In the prohibition of intercepting goods, the town person buys from the outsider, but here, the town resident sells it for the outsider and takes a commission. The reason behind this prohibition was stated by the Prophet (SA):

“A town resident should not sell on behalf of a nomad. Leave the people to seek their God-given profit from one another.” (M – from Jâbir)

لا يَبِع حاضر لباد، دَعُوا النَّاسَ يَرزُق اللهُ بَعضَهم مِن بَعض.

When the outsider reaches the market, he or she may contentedly sell for a cheaper price, and this will benefit the consumers. The outsider will also not be misled by the broker into hasty selling. In this case, there is a benefit for both the sellers and buyers when the broker is removed from the middle.

The majority allowed free counsel to be given by a town person to a nomad. Their proof is the Prophet’s saying

“When one of you seeks the advice of your brother, the latter should offer advice.” (A, and others – from Jâbir. Ibn Ḥajar: S in at-Talkheeṣ al-Ḥabeer)

إذَا اسْتَنْصَحَ أحَدُكُم أَخَاهُ فَلْيَنْصَحْ لَه .

Najsh [provocation]; which is raising the bid without intent to buy. ⁷⁹⁰

وَعَنِ النَّجْشِ، وَهُوَ أَنْ يَزِيْدَ فِي السِّلْعَةِ مَنْ لاَ يُرِيْدُ شِرَاءَهَا.

Two sales in one. This is when one says, “I will sell you this for ten fine pieces of currency or twenty defective pieces,” ⁷⁹¹ or, “I will sell you this on the condition that you sell me that or buy this from me as well.” ⁷⁹²

وَعَنِ النَّجْشِ، وَهُوَ أَنْ يَزِيْدَ فِي السِّلْعَةِ مَنْ لاَ يُرِيْدُ شِرَاءَهَا.

Brokerage is permissible in general. According to al-Mardâwi in his book al-Inṣâf, the prohibition of a town resident acting as a broker for a nomad is contingent upon five conditions: There is a need for the product in the town; the nomad is unaware of its price; he or she intends to sell it immediately; the broker is the one who seeks the nomad; and the broker sells the product for the nomad for a higher price.

790. Provocation is where a third party, who is not actually interested in buying, keeps outbidding a buyer to increase the price that the buyer will end up paying. It is another socially irresponsible practice. Ribâ was prohibited for the sake of equity. Gharar was prohibited for the sake of transparency. These practices, such as interception, provocation, and outbidding were prohibited for the sake of equity and societal wellbeing, and to prevent financial transactions from severing the bonds of brotherhood among people.

791. Their metal currency used to become defective and bent, which reduced its value.

792. This is because of the Prophet’s prohibition, “The Messenger of Allah (SA) forbade two transactions in one.” (T – from Abu Hurayrah. al-Albâni: S)

The Prophet (SA) said, “Do not intercept goods before they are brought to the market.” ⁷⁹³

وَقَالَ: " لَا تَلَقَّوْا السِّلَعَ حَتَّى يُهْبَطَ بِهَا الْأَسْوَاقَ."

He also said, “If one buys foodstuff, one should not sell it before being in full possession of it all.” ⁷⁹⁴

وَقَالَ: "مَنِ اشْتَرَى طَعَامًا فَلَا يَبِعْهُ حَتَّى يَسْتَوْفِيَهُ."

Some reporters of the hadiths of this prohibition explained it to mean selling an item for two prices: one for immediate payment and another for a deferred payment. This caused some scholars to forbid all transactions with deferred payment if the deferred price is different (higher) than the immediate price. However, the vast majority, including the four Imams, allow such transactions. They forbid finalizing the sale without agreeing on one of the two prices, though. The International Islamic Fiqh Academy (IIFA) of the Organization of Islamic Cooperation (formerly the Organization of Islamic Conference) states in Resolution # 51 (6/2):

Increasing the price for deferred payment over the immediate payment is permissible. It is also permissible to state the price of the commodity for the immediate and deferred payments. However, the transaction is not valid unless the two parties of the contract agree on the form of the transaction: immediate or deferred.
The prohibition of ‘two sales in one’ is for the purposes of transparency and the removal of ambiguity and equivocation from the transactions.

793. (Ag) See the prohibition of being a broker for nomads for the difference between the two prohibitions. The prohibition here is to allow the nomads or out-of-town sellers to arrive at the market and make informed decisions. It is also to allow the people of the town to benefit from the incoming goods.

Equal opportunity is often violated in our modern day markets when powerful companies attempt to win bids before alternative proposals are even entertained.

Notice here, and also in the prohibition of being a broker for a nomad, the aim of reducing the intermediaries for the benefit of the original producers, sellers, and final consumers.

794. (Ag – from Ibn ‘Umar and Ibn ‘Abbâs, who said, “I think it is the same for all sales.”)

F Please note that while full possession of food might be defined as food being moved from the seller’s place to the buyer’s, different items have different criteria. For example, houses are considered to be in full possession of the buyer when the buyer is given full access to use them. The customs of people define the full possession of various items.
One of the reasons behind this prohibition and the prohibition of selling what one does not own is to ensure the accountability of capital, and to prevent investors from eliminating their own risk by shifting all the risk to others. Here, the buyer must possess the commodity and be responsible (liable) for it before profiting from it.
In cost-plus sales used for financing, it is essential that the commodity (e.g., house) becomes fully owned by the financier before it is sold to the final buyer.

The Messenger of Allah (SA) said:

“Profit follows liability.” (A, D, T, N, Ma – part of a hadith from ‘Â’ishah; authenticated by T.

الخَرَاجُ بِالضَمانِ.

This was later considered by the scholars to be a legal maxim
The presence of multiple layers of intermediaries who make profit without liability tends to inflate prices and shift risk to the original producers and final consumers. This irresponsible form of investment is one of the reasons behind the inequity and severe swings of contemporary markets. The poor usually suffer the most from these practices.

Forbidden Sales Continued

( Page : no 69)

Book of Selling and Commercial

Transactions

Forbidden Sales Continued

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

Forbidden Sales Continued