Jurisprudential Rulings and Issues in Light of the Quran and Hadith: Book of Sales: Volume 02: Page 33
Question
Peace be upon you and the mercy of Allah and His blessings.
Selling an item before taking possession of it.
Answer with the Help of Allah, Provided the Question is Correct
And peace be upon you and the mercy of Allah and His blessings!
الحمد لله، والصلاة والسلام علىٰ رسول الله، أما بعد!
In the following lines, we will discuss the issues related to selling an item before formally taking possession of it. It will be clarified which situations are permissible and which are not, as well as in which cases possession will be considered valid and in which cases it will not.
① Ruling on Selling Before Taking Possession
The esteemed scholars unanimously agree that it is not permissible to sell an item after purchasing it but before taking possession of it, provided that the item is related to measurement, weighing, or counting. In fact, according to the correct and preferred opinion, the same ruling applies to other items as well.
The Messenger of Allah ﷺ said: "مَنِ ابْتَاعَ طَعَامًا فَلَا يَبِعْهُ حَتَّى يَسْتَوْفِيَهُ"
"Whoever buys grain should not sell it until he has taken full possession of it (by measuring and weighing it)."
Reference: Sahih al-Bukhari, Al-Buyu', Chapter on Measurement for the Seller and the Giver, Hadith 2126. And Sahih Muslim, Al-Buyu', Chapter on the Invalidity of Selling the Sold Item Before Taking Possession, Hadith 1525.
In one narration, it is stated: "حتى يقبضه" meaning until he takes it into his possession. And in another narration: "حَتَّى يَكْتَالَهُ" meaning until he measures it.
Reference: Sahih Muslim, Al-Buyu', Chapter on the Invalidity of Selling the Sold Item Before Taking Possession, Hadith 1525.
Sayyidina Ibn Abbas رضي الله تعالى عنه said: "وأحسب كل شيء مثله"
"I consider this ruling applicable to everything except food items."
Reference: Jami' at-Tirmidhi, Al-Buyu', Chapter on What Has Been Reported Regarding the Dislike of Selling Food Until It Is Fully Received, Hadith 1291.
Moreover, the general command of the Noble Prophet ﷺ is: "إذا اشتريت بيعا فلا تبعه حتى تقبضه"
"Whenever you buy something, do not sell it before taking possession of it."
Reference: Musnad Ahmad 3/402.
Abu Dawood رحمه الله reported: "فَإِنَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ نَهَى أَنْ تُبَاعَ السِّلَعُ حَيْثُ تُبْتَاعُ حَتَّى يَحُوزَهَا التُّجَّارُ إِلَى رِحَالِهِمْ "
"The Messenger of Allah ﷺ prohibited selling the goods in the same place where they were purchased until the trader takes his merchandise to his own home."
Reference: Sunan Abi Dawood, Book on Selling Food before Taking Possession, Hadith 3499.
The Wisdom Behind the Prohibition of Sale Before Taking Possession
Shaykh al-Islam Ibn Taymiyyah رحمه الله and his esteemed student Ibn Qayyim رحمه الله stated that the prohibition of selling a purchased item before taking possession is likely due to the fact that the buyer does not have complete control over it yet. It is possible that the seller may hand over the item or may not. Especially if the seller sees that the buyer is gaining more profit, he may attempt to cancel the sale, refuse, or find a way to rescind it. This is also supported by the principle that one cannot benefit from something for which he is not responsible for its loss.
Reference: I'lam al-Muwaqqi'in 3/134, and Al-Fatawa al-Kubra 5/391.
Therefore, it is obligatory for every Muslim that when purchasing something, they should not sell it until they have obtained complete possession.
Nowadays, many people are negligent regarding this issue or, due to ignorance, sell the purchased item without having complete possession. For example, they may count the bags, packets, or boxes at the place of purchase and then sell it to someone else, even though legal possession has not been obtained; thus, such a sale is not permissible.
② Forms of Valid Possession
If the question arises as to how valid possession will be obtained, the answer is that possession will vary according to the nature of each item.
◈ That which is countable will be possessed through counting.
◈ That which is related to measurement or weight will be possessed through measuring or weighing, and it is also necessary to transfer and secure it in its place.
◈ If it is clothing, animals, or vehicles, then taking them into one's custody will be possession.
◈ That which can be held in hand, such as jewels or books, will be possession by holding it in hand.
◈ That which cannot be moved, such as land, houses, or fruits on trees, will be possession when the buyer has complete authority and control over it.
◈ For possession of a house, obtaining the key and opening the door to take control is sufficient.
Many people delay taking possession after the contract is finalized and engage in transactions without legal possession, whereas the Messenger of Allah ﷺ has prohibited this. The result is that disputes, disagreements, regret, and even litigation arise. Whoever opposes the command of the Messenger ﷺ will only face regret and distress.
③ The Virtue of Iqalah (Cancelling a Sale)
If after the sale the seller or buyer feels regret, or if the buyer no longer needs the item, or if there is difficulty in paying the price, Islamic teaching states that the sale should be cancelled considering the brother's hardship, and he should not be compelled.
The Messenger of Allah ﷺ said: "من أقال مسلما أقال الله عثرته يوم القيامة"
"Whoever cancels a sale with a Muslim (at his request), Allah will forgive his slips on the Day of Resurrection."
Reference: Sunan Abi Dawood, Book of Sales, Hadith 3460 and Sunan Ibn Majah, Book of Trade, Hadith 2199. The wording is from him.
The term "Aqalah" means that the contract is terminated and both parties return their respective items without any increase or decrease. This is a requirement of good dealings and Islamic brotherhood.
④ Usury and Its Ruling
Usury is a very important and serious issue, the prohibition of which has been agreed upon by all previous Shari'ahs. Allah Almighty has declared a severe warning for those who engage in usury.
Allah Almighty says: ﴿الَّذينَ يَأكُلونَ الرِّبوٰا۟ لا يَقومونَ إِلّا كَما يَقومُ الَّذى يَتَخَبَّطُهُ الشَّيطـٰنُ مِنَ المَسِّ...﴿٢٧٥﴾... سورة البقرة
"Those who consume usury will not stand on the Day of Resurrection except as one stands who has been driven to madness by the touch of Satan."
Reference: Al-Baqarah 2/275.
In the same verse, it is further stated: ﴿وَمَن عادَ فَأُولـٰئِكَ أَصحـٰبُ النّارِ هُم فيها خـٰلِدونَ ﴿٢٧٥﴾... سورة البقرة
"And whoever returns (to usury) - those are the companions of the Fire; they will abide therein eternally."
Reference: Al-Baqarah:2/275.
And it is said: ﴿يَمحَقُ اللَّهُ الرِّبوٰا۟ ...﴿٢٧٦﴾... سورةالبقرة
"Allah destroys usury."
Reference: Al-Baqarah:2/276.
It is also stated: ﴿يَمحَقُ اللَّهُ الرِّبوٰا۟ وَيُربِى الصَّدَقـٰتِ وَاللَّهُ لا يُحِبُّ كُلَّ كَفّارٍ أَثيمٍ ﴿٢٧٦﴾... سورةالبقرة
"Allah destroys usury and increases charity. And Allah does not like every sinning disbeliever."
Reference: Al-Baqarah:2/276.
And the declaration of war was made: ﴿يـٰأَيُّهَا الَّذينَ ءامَنُوا اتَّقُوا اللَّهَ وَذَروا ما بَقِىَ مِنَ الرِّبوٰا۟ إِن كُنتُم مُؤمِنينَ ﴿٢٧٨﴾ فَإِن لَم تَفعَلوا فَأذَنوا بِحَربٍ مِنَ اللَّهِ وَرَسولِهِ وَإِن تُبتُم فَلَكُم رُءوسُ أَموٰلِكُم لا تَظلِمونَ وَلا تُظلَمونَ ﴿٢٧٩﴾... سورة البقرة
"O you who have believed! Fear Allah and abandon what remains of interest, if you should be believers. (278) And if you do not, then be informed of a war from Allah and His Messenger. But if you repent, you may have your principal - you do no wrong, nor are you wronged."
Reference: Al-Baqarah 2/278,279.
Severe warnings regarding usury have also come in the Hadith:
◈ Usury has been counted among the major sins that lead to destruction.
Reference: Sahih al-Bukhari, Al-Wasaya, Chapter on the Saying of Allah: (Indeed, those who consume the wealth of orphans...)(An-Nisa 4/10) Hadith 2766.
◈ A curse has been placed upon those who consume, provide, write, and testify to usury.
Reference: Sahih Muslim, Al-Musaqat, Chapter on the Curse of the Usurer and the One Who Takes Usury, Hadith 1598.
◈ It was said: "A dirham of usury is worse than committing adultery thirty-three or thirty-six times."
Reference: Musnad Ahmad 5/225.
◈ It was said: "There are seventy degrees of usury, the least of which is like a man marrying his own mother."
Reference: Al-Mu'jam Al-Awsat by Al-Tabarani 8/74, Hadith 7147.
شیخ الاسلام ابن تیمیہ رحمه الله states that the prohibition of riba is greater than that of gambling, because riba certainly inflicts injustice upon the needy.
Reference: Majmu' al-Fatawa of Sheikh al-Islam Ibn Taymiyyah رحمه الله 20/346,347.
⑤ Types of Riba
In Arabic, riba is called "ربا", which literally means increase, and in Sharia, it refers to a specific increase. There are two types:
① Riba of loans
② Riba of increases
① Riba of Loans
There are two forms of this:
◈ The riba of ignorance: Increasing the debt upon the completion of the term.
Allah the Almighty has said: ﴿وَإِن كانَ ذو عُسرَةٍ فَنَظِرَةٌ إِلىٰ مَيسَرَةٍ...﴿٢٨٠﴾... سورة البقرة
"And if someone is in hardship, then let there be postponement until ease."
Reference: Al-Baqarah: 2/280.
◈ Lending in the exchange of similar items, such as gold for gold, silver for silver, and wheat for wheat on credit.
② Riba of Increases
Making adjustments in the exchange of similar items. The Messenger of Allah ﷺ said:
"قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: الذَّهَبُ بِالذَّهَبِ وَالْفِضَّةُ بِالْفِضَّةِ وَالْبُرُّ بِالْبُرِّ وَالشَّعِيرُ بِالشَّعِيرِ وَالتَّمْرُ بِالتَّمْرِ وَالْمِلْحُ بِالْمِلْحِ مِثْلاً بِمِثْلٍ سَوَاءً بِسَوَاءٍ يَدًا بِيَدٍ "
"Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, and salt for salt must be equal and exchanged hand to hand."
Reference: Sahih Muslim, Book of Al-Musaqat, Chapter on Exchange and Selling Gold for Silver in Cash, Hadith 1587, and Musnad Ahmad 3/49,50.
And it was said: "فَإِذَا اخْتَلَفَتْ هَذِهِ الأَصْنَافُ فَبِيعُوا كَيْفَ شِئْتُمْ إِذَا كَانَ يَدًا بِيَدٍ"
"When these items are different, sell them as you wish, provided that the exchange is hand to hand."
Reference: Sahih Muslim, Book of Al-Musaqat, Chapter on Exchange and Selling Gold for Silver in Cash, Hadith 1587.
And it was said:
"Gold should be bought and sold with gold by weight, and silver with silver by weight. Wheat should be bought and sold with wheat by measure, and barley with barley by measure."
Reference: Al-Sunan Al-Kubra by Al-Bayhaqi: 5/291.
The conclusion is that:
◈ If both the type and the reason are the same, then both excess and deferred payment are prohibited.
◈ If the reason is the same but the type is different, then deferred payment is prohibited, but excess is permissible provided it is in cash.
◈ If both the type and the reason are different, then both excess and deferred payment are permissible.
ھذا ما عندی والله اعلم بالصواب
