Legal Rulings and Issues in Light of the Quran and Hadith, Book of Sales: Volume 02: Page 16
Question
Peace be upon you and the mercy of Allah and His blessings.
Issues of trade
Answer with the Help of the Bestower, Provided the Question is Correct
And peace be upon you and the mercy of Allah and His blessings!
All praise is due to Allah, and peace and blessings be upon the Messenger of Allah. To proceed!
Allah, the Exalted, has explained the issues of transactions in His Book, the Holy Quran, and the Messenger of Allah ﷺ has clarified them in His pure Sunnah, as people continually find themselves in dire need of them. For example, a person requires food that provides strength to the body, and similarly, there is a need for clothing, shelter, transportation, etc., as these are included in the basic and supplementary necessities of life.
Legitimacy of Sale from the Quran, Sunnah, Consensus, and Analogy
◈ Evidence from the Book of Allah
Allah, the Exalted, says: "وَأَحَلَّ اللَّهُ الْبَيْعَ"
"And Allah has made trade (sale) lawful."
Reference: Al-Baqarah 2:275.
He also said: ﴿ لَيسَ عَلَيكُم جُناحٌ أَن تَبتَغوا فَضلًا مِن رَبِّكُم...﴿١٩٨﴾... سورة البقرة
"There is no sin upon you in seeking bounty from your Lord."
Reference: Al-Baqarah 2:198.
◈ Evidence from the Sunnah of the Messenger ﷺ
The Messenger of Allah ﷺ said: "عَنْ حَكِيمِ بْنِ حِزَامٍ رَضِيَ اللَّهُ عَنْهُ أَنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ الْبَيِّعَانِ بِالْخِيَارِ مَا لَمْ يَتَفَرَّقَا قَالَ هَمَّامٌ وَجَدْتُ فِي كِتَابِي يَخْتَارُ ثَلَاثَ مِرَارٍ فَإِنْ صَدَقَا وَبَيَّنَا بُورِكَ لَهُمَا فِي بَيْعِهِمَا وَإِنْ كَذَبَا وَكَتَمَا فَعَسَى أَنْ يَرْبَحَا رِبْحًا وَيُمْحَقَا بَرَكَةَ بَيْعِهِمَا "
"The two parties involved in a transaction have the option to retract until they separate (from the gathering). If both speak the truth and clarify (the reality of the transaction), their sale will be blessed; and if both lie and conceal (the truth), the blessing will be removed from their sale."
Reference: Sahih al-Bukhari, Al-Buyu', Chapter: When the two sellers clarify... Hadith: 2079, and Sahih Muslim, Al-Buyu', Chapter: Truthfulness in sale and clarification, Hadith: 1532.
◈ Consensus of the Ummah
There is a consensus among the scholars of the Ummah regarding the permissibility of buying and selling.
◈ Analogy
The rationale for analogy is that people's needs and necessities demand the permissibility of sale, as a person's need is sometimes linked to a price or valuable item that is in the possession of another person, who will not give it without compensation. Therefore, wisdom dictates that sales should be permitted to facilitate access to the desired item.
A sale is established through words or actions
◈ Through Saying (Offer and Acceptance)
In saying, there is an offer and acceptance, meaning the seller says: “I have sold this item” and the buyer says: “I have purchased this item,” then the sale is established.
◈ Through Action (Mutual Exchange)
Sometimes transactions occur in such a way that one person gives an item without any conversation, and the other pays its known price.
◈ With Both Saying and Action
At times, a sale involves both saying and action (interaction).
Sheikh Taqi al-Din رحمه الله has mentioned several forms of sale by mutual exchange (sale through action):
① Only the Seller's Verbal Offer and the Buyer takes the item silently. For example: the seller says: “Take this cloth for one dinar” and the buyer takes it. Similarly, if the price is something other than cash, the seller says: “Take this cloth for your cloth” and the buyer takes it into his possession.
② Only the Buyer Speaks and the Seller gives the item, whether the price is determined immediately or there is assurance of payment later.
③ Neither the seller nor the buyer should use any words but rather it should be customary for the buyer to set the price and take the desired item.
Conditions Related to the Seller and Buyer
There are several conditions for the validity of a sale: some conditions pertain to the seller and buyer, and some pertain to the item being sold (the sold item). If any one of these conditions is not met, the sale will not be valid.
① Mutual Consent
It is essential that the sale occurs with the mutual consent of both parties. If either party is subjected to unjust coercion or force, the sale will not be valid. Allah, the Exalted, has stated:
﴿إِلّا أَن تَكونَ تِجـٰرَةً عَن تَراضٍ مِنكُم ...﴿٢٩﴾... سورة النساء
"But it is only lawful for you to trade with mutual consent."
Reference: An-Nisa: 4:29.
And the Messenger of Allah ﷺ said: "إِنَّمَا الْبَيْعُ عَنْ تَرَاضٍ"
"Sales are based on mutual consent."
Reference: Sunan Ibn Majah, Book of Trade, Chapter on Sale with Option, Hadith: 2185 and Sahih Ibn Hibban (Ibn Bulban), Book of Sales, Chapter on Mention of the Reason for which this Sale is Prohibited, Hadith: 4967.
✔ However, when coercion is rightful and correct, the sale will be valid. For example: if a ruler or judge compels a person to sell his property because he has a debt that must be paid, then this coercion is valid.
② The Competence of Both Parties
It is also a condition for the validity of the sale that both parties involved in the transaction possess the capacity to engage in the sale, meaning each must be free, sane, and of age. Therefore, the sale conducted by children, fools, the insane, and slaves (without the permission of their master) will not be valid or correct.
③ The Seller Must Be the Owner or a Proxy
It is also a condition that the seller must be the owner of the item or a proxy of the owner. The Messenger of Allah ﷺ said to Hakim bin Hizam رضي الله عنه:
"لَا تَبِعْ مَا لَيْسَ عِنْدَكَ"
"Do not sell what you do not own."
Reference: Jami` at-Tirmidhi, The Book of Sales, Chapter on the Prohibition of Selling What You Do Not Have, Hadith: 1232 and Sunan Ibn Majah, The Book of Trade, Chapter on the Prohibition of Selling What You Do Not Have, Hadith: 2187.
Allama Wazir رحمه الله فرماتے ہیں: "The scholars agree that it is not permissible to sell something that one does not possess or own, because then one would be going to buy something that is not owned (and it may not be available), therefore such a sale is invalid."
① The Profit Must Be Legally Permissible
The sold item must be something from which deriving benefit is legally permissible. The sale of something from which benefit is prohibited is not valid. Examples include: alcohol, pork, instruments of entertainment, carrion, etc. The Messenger of Allah ﷺ said:
"إِنَّ اللهَ وَرَسُولَهُ حَرَّمَ بَيْعَ الخَمْرِ وَالمَيْتَةِ وَالخِنْزِيرِ والأَصْنَامِ"
"Allah تعالى and His Messenger ﷺ have declared the sale of alcohol, carrion, pork, and idols to be forbidden."
Reference: Sahih al-Bukhari, Al-Buyu', Chapter on the Sale of Carrion and Idols, Hadith: 2236 and Sahih Muslim, Al-Musaqat, Chapter on the Prohibition of Selling Alcohol, Carrion, Pork, and Idols, Hadith: 1581.
In one narration it is stated:
"Allah تعالى has declared alcohol and its price, carrion and its price, pork and its price, all of these to be forbidden."
Reference: Sunan Abi Dawood, Al-Buyu', Chapter on the Price of Alcohol and Carrion, Hadith: 3485.
"إن الله تعالى حرم الخمر وثمنها وحرم الميتة وثمنها وحرم الخنزير وثمنه"
Similarly, the sale of impure oil and foul-smelling items is also unlawful, because the Messenger of Allah ﷺ said: "إنَّ الله إِذَا حَرَّمَ شَيْئاً حَرَّمَ ثَمَنَهُ"
"When Allah has declared something unlawful, its price is also declared unlawful."
Reference: Musnad Ahmad 1/322. And Sunan al-Daraqutni 3/7 Hadith: 2791 and this wording is from it.
And when the Messenger of Allah ﷺ was asked about the fat of carrion used for greasing boats, softening hides, and lighting lamps in homes, he said: "لَا، هُوَ حِرَامٌ"
"It is not permissible to use it; it is unlawful."
Reference: Sahih al-Bukhari, Al-Buyu' Chapter on the Sale of Carrion and Idols, Hadith 2236, and Sahih Muslim, Al-Musaqat Chapter on the Prohibition of Selling Wine, Carrion, Pork, and Idols, Hadith 1581.
② It is possible for the seller to refer
The item being sold must be such that the seller can deliver it to the buyer; otherwise, it will be considered as non-existent, and its sale will not be permissible. For example: the sale of a runaway slave, an uncontrollable camel, or a bird flying in the air. Similarly, it is not permissible to sell a usurped item to anyone other than the usurper, as the buyer will not be able to obtain it. However, it is permissible to sell it to someone who has the ability to retrieve it.
③ The sold item and price must be clear
For the validity of a sale, it is also necessary that the subject matter and its price are clear and defined to both parties, as ignorance falls under deception, which is prohibited. It is not permissible to purchase something that has not been seen at all, or if seen, its true nature (good or bad) is not known. Therefore, the sale of a fetus in the womb and the sale of milk in the udders of animals is not permissible.
Based on this, the sale of Mulaamasah (where the cloth touched must be of that price) and the sale of Munabadhah (where the thrown cloth must be of that price) is not permissible. It is narrated from Sayyidina Abu Hurairah رضي الله عنه:
"نهى الرسول صلى الله عليه وسلم عن الملامسة والمنابذة "
"The Prophet ﷺ prohibited the sale of Mulaamasah and Munabadhah."
Reference: Sahih al-Bukhari, Al-Buyu' chapter on the sale of Munabadhah, Hadith 2146, 2147; and Sahih Muslim, Al-Buyu' chapter on the invalidation of the sale of Mulaamasah and Munabadhah, Hadith 1511, 1512.
Similarly, conducting a sale by throwing pebbles is also not permissible, for example: saying, "You throw the pebble, and whatever cloth it lands on is yours for that price."
④ Explanation of Invalid Forms of Sale
Allah Almighty has made buying and selling permissible for His servants, but this is on the condition that it does not lead to the violation of a more important and beneficial Shari'ah ruling. For example, a sale that obstructs the performance of a mandatory act of worship, or a trade that causes harm to another Muslim, is prohibited and unlawful.
① Trade After the Friday Adhan
According to this principle, for the person upon whom Friday is obligatory, buying and selling is not permissible after the Adhan. Allah Almighty says:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا إِذا نودِىَ لِلصَّلوٰةِ مِن يَومِ الجُمُعَةِ فَاسعَوا إِلىٰ ذِكرِ اللَّهِ وَذَرُوا البَيعَ ذٰلِكُم خَيرٌ لَكُم إِن كُنتُم تَعلَمونَ ﴿٩﴾... سورة الجمعة
"O you who have believed, when the call to prayer is announced on the day of Friday, then proceed to the remembrance of Allah and leave trade. That is better for you if you only knew."
Reference: Al-Jumu'ah: 62/9.
In this verse, Allah Almighty has prohibited trade as soon as the Friday Adhan is called, so that engagement in commerce does not become a reason for absenteeism from the Friday prayer. Although being occupied with other worldly matters at that time is also forbidden, trade is specifically mentioned because it is such an important means of livelihood that people tend to be more engrossed in it.
Thus, the prohibition mentioned in the verse declares the sale after the Friday Adhan to be unlawful and impermissible.
Similarly, it is unlawful to be engaged in trade at the time of the call to prayer for other obligatory prayers and not to attend the mosque. Allah, the Exalted, has said: ﴿فى بُيوتٍ أَذِنَ اللَّهُ أَن تُرفَعَ وَيُذكَرَ فيهَا اسمُهُ يُسَبِّحُ لَهُ فيها بِالغُدُوِّ وَالءاصالِ ﴿٣٦﴾رِجالٌ لا تُلهيهِم تِجـٰرَةٌ وَلا بَيعٌ عَن ذِكرِ اللَّهِ وَإِقامِ الصَّلوٰةِ وَإيتاءِ الزَّكوٰةِ يَخافونَ يَومًا تَتَقَلَّبُ فيهِ القُلوبُ وَالأَبصـٰرُ ﴿٣٧﴾ لِيَجزِيَهُمُ اللَّهُ أَحسَنَ ما عَمِلوا وَيَزيدَهُم مِن فَضلِهِ وَاللَّهُ يَرزُقُ مَن يَشاءُ بِغَيرِ حِسابٍ ﴿٣٨﴾... سورة النور
"In houses which Allah has ordered to be raised, and in which His name is mentioned, there are men who do not distract themselves from the remembrance of Allah and the establishment of prayer and the giving of zakah by trade and commerce. They fear a Day when hearts and eyes will be overturned (37) so that Allah may reward them according to the best of what they did and increase them out of His grace. And Allah provides for whom He wills without account."
Reference: An-Nur 24:34-36.
② Selling to Those Who Use for Sin
Selling something to a person who will use it for disobedience to Allah and for unlawful actions is prohibited. For example, selling fruit juice to someone who makes alcohol. Allah's command is:
﴿وَلا تَعاوَنوا عَلَى الإِثمِ وَالعُدوٰنِ ...﴿٢﴾... سورة المائدة
"Do not cooperate in sin and transgression."
Reference: Surah Al-Ma'idah 2:5.
Certainly, this situation falls under the cooperation in sin and transgression.
Selling weapons during conflicts and strife among Muslims is also prohibited, so that no Muslim is killed through them. In such circumstances, selling other war materials is also not permissible, because the Messenger of Allah ﷺ prohibited it, and Allah has also prohibited it on the same principle: ﴿وَلا تَعاوَنوا عَلَى الإِثمِ وَالعُدوٰنِ ...﴿٢﴾... سورة المائدة
"Do not cooperate in sin and transgression."
Reference: Surah Al-Ma'idah 2:5.
Allamah Ibn Qayyim رحمه الله states: "The evidences from Islamic law are clear that the intention in trade is essential, and this intention influences whether a sale is permissible or impermissible, and lawful or unlawful. For example: if it is known that a person will kill a Muslim, selling him weapons is forbidden because it is cooperation in oppression and wrongdoing. Conversely, if weapons are given to a person known to be fighting in the path of Allah, it is a source of reward and obedience. Similarly, selling weapons to those who fight Muslims or commit robbery is forbidden and impermissible because it entails cooperation in sin."
Reference: Al-A'lam al-Muwaqqi'in: 3/99-100 with modifications.
③ Selling a Muslim Slave to a Non-Muslim
It is not permissible to sell a Muslim slave to a disbeliever (except in the case where he is legally becoming free upon coming into their ownership)
Reference: Islamic law states that when a slave becomes the property of a close relative, such as his father or brother, he will be considered free as soon as he comes into their ownership. (Saarim)
Because in this case, it necessitates humiliating and degrading the Muslim before the disbeliever. Allah, the Exalted, has said:
﴿ وَلَن يَجعَلَ اللَّهُ لِلكـٰفِرينَ عَلَى المُؤمِنينَ سَبيلًا ﴿١٤١﴾... سورة النساء
"And Allah will never give the disbelievers a way over the believers."
Reference: An-Nisa: 141.4.
And the Messenger of Allah ﷺ said: "الإسلام يعلو ولا يعلى عليه"
"Islam is dominant and not dominated."
Reference: Sunan al-Kubra by Al-Bayhaqi: 6/205. And Sahih al-Bukhari, Book of Funerals, Chapter: If a child embraces Islam and dies... after Hadith: 1353, as a commentary.
④ Selling a Muslim Brother's Slave
It is forbidden to sell on the sale of a Muslim brother. For example, if a person buys something for ten rupees, another says: "You should return this item, I will give you the same item for nine rupees." The Messenger of Allah ﷺ said:
"لَا يَبِعْ بَعْضُكُمْ عَلَى بَيْعِ بَعْضٍ"
"You should not sell on the sale of one another."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter on the prohibition of intercepting the caravan... Hadith 2165, and Sahih Muslim, Al-Buyu, Chapter on the prohibition of a man selling on the sale of his brother... Hadith (7) 1412.
And the wording of another narration is: "لا يَبِيعُ الرَّجُلُ عَلَى بَيْعِ أَخِيهِ"
"A man should not sell on the sale of his brother."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter on not selling on the sale of his brother... Hadith 2140, and Sahih Muslim, Al-Buyu, Chapter on the prohibition of a man selling on the sale of his brother... Hadith (8) 1412.
Similarly, it is also not permissible to buy on the purchase of a Muslim brother. For example, if someone sells an item for nine rupees, another says: "I am willing to buy this item from you for ten rupees."
Unfortunately, today in the markets of Muslims, there are numerous unlawful practices in trade and transactions. Every Muslim should avoid these, and if someone forces them, they should clearly refuse.
⑤ Selling from Urban to Rural
One of the prohibited forms of trade is that a townsman sells to a villager. The Messenger of Allah ﷺ said:
"لَا يَبِيعُ حَاضِرٌ لِبَادٍ"
"A townsman should not sell the property of a villager."
Reference: Sahih al-Bukhari, Al-Buyu', Chapter: Is it permissible for a townsman to sell for a villager without a fee? ... Hadith 2158 and Sahih Muslim, Al-Buyu', Chapter: Prohibition of the sale of the townsman for the villager, Hadith 1525.
Sayyidina Ibn Abbas رضي الله تعالیٰ عنہ said:
"The meaning of this Hadith is that a townsman should not act as an intermediary when selling the goods of a villager."
Reference: Sahih Muslim, Al-Buyu', Chapter: Prohibition of the sale of the townsman for the villager, Hadith 1521.
And the Messenger of Allah ﷺ said: "دَعُوا النَّاسَ يَرْزُقُ اللَّهُ بَعْضَهُمْ مِنْ بَعْضٍ "
"Leave people free in trade. Allah provides sustenance to some through others."
Reference: Sahih Muslim, Al-Buyu', Chapter: Prohibition of the sale of the townsman for the villager, Hadith 1522.
Just as it is not permissible for a townsman to act as an intermediary in the sale of a villager's property, similarly, a townsman should not act as an intermediary in purchasing from a villager. However, if a villager acts as an intermediary for a townsman's property, there is no prohibition.
⑥ Sale of 'Aynah
One of the forms of unlawful trade is known as "Bay' al-'Aynah". Its form is such that an item is sold to a person on credit, and then the same buyer is repurchased at a lower cash price. For example: a car is sold for twenty thousand dirhams on credit, and then it is bought back from the same person for fifteen thousand dirhams in cash, while the twenty thousand dirhams are due upon the completion of the term.
This is usury and is forbidden, as it is a trick to obtain interest, as if he sold the credit dirhams for cash dirhams with an increase, and the car was made a means for usury. The Prophet ﷺ said:
"قَالَ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ : (إِذَا تَبَايَعْتُمْ بِالْعِينَةِ ، وَأَخَذْتُمْ أَذْنَابَ الْبَقَرِ ، وَرَضِيتُمْ بِالزَّرْعِ ، وَتَرَكْتُمْ الْجِهَادَ ، سَلَّطَ اللَّهُ عَلَيْكُمْ ذُلًّا لَا يَنْزِعُهُ حَتَّى تَرْجِعُوا إِلَى دِينِكُمْ"
"When you begin to engage in Bay' al-'Aynah, hold onto the tails of oxen (become engrossed in agriculture), and become satisfied with farming, and abandon jihad, then Allah will impose humiliation and disgrace upon you and will not remove it until you return to your religion."
Reference: (Weak) Sunan Abi Dawood, Al-Buyu', Chapter on Prohibition of 'Aynah, Hadith: 3462.
The Messenger of Allah ﷺ also said: " يَأْتِي عَلَى النَّاسِ زَمَانٌ يَسْتَحِلُّونَ الرِّبَا بِالْبَيْعِ "
"There will come a time for people when they will declare usury as lawful by calling it trade."
Reference: (Weak) Al-Ghayah al-Maram fi Takhrij Ahadith al-Halal wal-Haram Hadith 13 and Al-Ghayah al-Lahfan min Masa'id al-Shaytan: 1/486.
⑤ Explanation of Conditions in Sale
Conditions in sale are often imposed. Sometimes both the seller and the buyer have to impose a condition in the sale, and sometimes only one of them does. In light of this necessity, a few conditions are stated here, clarifying which condition is valid and permissible and which is invalid and void.
The scholars رحمۃ اللہ علیہ define a condition in sale as when one of the parties, either the seller or the buyer, imposes a requirement on the other during the sale that serves their personal benefit. Therefore, according to the scholars, only those conditions that are stipulated at the time of the transaction are considered valid; any condition made before or after the sale is not regarded.
There are two main types of conditions in sale:
① Valid Conditions
These are the conditions that do not contradict the validity of the sale, and adherence to them is necessary, because the Messenger of Allah ﷺ said:
"المُسْلِمُونَ عَلَى شُرُوطِهِمْ"
"Muslims should adhere to mutual conditions."
Reference: Jami` at-Tirmidhi, Book of Judgments, Chapter on What Has Been Reported from the Messenger of Allah ﷺ Regarding Reconciliation Among People, Hadith: 1352.
✔ The principle is that every condition is permissible, except for the condition that the legislator has declared invalid and impermissible. There are two types of valid conditions:
❀ (1) A condition that is for the benefit and strength of the sale contract
This condition is for the benefit of the one who stipulates it. Examples:
◈ Stipulating a mortgage (collateral) to secure the transaction, or setting a guarantor—this reassures the seller.
◈ Similarly, a condition to defer the payment of the full amount or part of it for a specified period (credit)—this benefits the buyer.
When this condition is fulfilled, the sale becomes valid.
Similarly, if the buyer stipulates a specific characteristic for the item at the time of sale, for example: it should be of a certain standard, from a certain company, or a certain model—there is no harm in this, as people's preferences and demands vary, and it is their right. If the item does not meet the stipulated condition, the buyer has the option to annul the sale or to pay the price considering the difference between the desired item and the available item.
❀ (2) The Condition in Which the Seller or Buyer Has Personal Benefit
It is also included among the permissible conditions that the seller or buyer may stipulate a condition in the sold item that benefits them personally. Examples:
◈ The seller of a house may stipulate that they will reside in that house for a specified period.
◈ The seller of an animal or vehicle may stipulate that it can be ridden to a specified location.
As narrated by Sayyidina Jabir رضي الله تعالى عنه: "He sold his camel to the Messenger of Allah ﷺ and stipulated that he would ride it to Madinah."
Reference: Sahih al-Bukhari, Al-Wakala, Chapter: If a man appoints another man... Hadith 2309; Sahih Muslim, Salat al-Musafirin, Chapter: The desirability of greeting the mosque... Hadith 715; Jami` at-Tirmidhi, Al-Manaqib, Chapter: The virtues of Jabir ibn Abdullah رضي الله عنهما, Hadith 3852, and this wording is from him.
This hadith clarifies that it is permissible to stipulate riding to a specified location when selling an animal, and similar issues can be analogized based on this.
Similarly, if a condition is set by the buyer, the seller must adhere to it. For example:
◈ A condition for delivering wood to a certain location.
◈ A condition for sewing the fabric when purchasing it.
All of these are permissible.
② Invalid Conditions
There are several types of these, some of which are as follows:
1) An Invalid Condition that Nullifies the Sale
For example: To impose a condition of another sale or contract while selling, such as someone saying:
◈ “I sell you this item on the condition that you rent me your house.”
◈ “I sell you this item on the condition that you include me in your certain work or in your house.”
◈ “I sell you this goods on the condition that you lend me this amount of money.”
All these are invalid conditions that nullify the sale from the very beginning, because it is stated in the Hadith:
"نَهَى رَسُولُ اَللَّهِ - صلى الله عليه وسلم - عَنْ بَيْعَتَيْنِ فِي بَيْعَةٍ"
"The Messenger of Allah ﷺ prohibited two sales in one sale:"
Reference: Jami` at-Tirmidhi, Al-Buyu`, Chapter on Prohibition of Two Sales in One Sale, Hadith 1231, and Musnad Ahmad 2/432 and 475.
Imam Ahmad رحمه الله has provided the same explanation of this Hadith as mentioned above.
2) A condition that is itself invalid but does not invalidate the sale
Example:
◈ The buyer stipulates that if he suffers a loss, he will return the goods.
◈ Or the seller stipulates that the buyer cannot sell it to anyone else.
These conditions are invalid because they contradict the essence of the contract. The requirement of a sale is that the buyer has absolute authority over the purchased goods. And the Messenger of Allah ﷺ said:
"ما كان من شرط ليس في كتاب الله فهو باطل وإن كان مائة شرط"
"Whoever imposes a condition that is not in the Book of Allah, then it is void, even if he imposes a hundred conditions."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter on Buying and Selling with Women, Hadith: 2155, and Sahih Muslim, Al-Itiq, Chapter on Clarifying that the Loyalty is for the One Who Manumits, Hadith: 1504.
However, despite the invalidity of the condition, the original sale is neither invalid nor corrupt, because the Prophet ﷺ declared the condition of Sayyidah Barirah رضي الله عنها's owners to be invalid, which stated, "If she is freed, her loyalty will belong to them," but did not annul the contract and sale. And he said: "إِنَّمَا الْوَلَاءُ لِمَنْ أَعْتَقَ"
"Lofty loyalty belongs to the one who frees."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter on Buying and Selling with Women, Hadith: 2155, and Sahih Muslim, Al-Itiq, Chapter on Clarifying that Loyalty Belongs to the One Who Frees, Hadith: 1504.
It is essential for a Muslim trader to learn the issues of buying and selling, and to recognize valid and invalid conditions, so that he can have complete insight in transactions and prevent disputes and conflicts among Muslims. Generally, the disputes that arise are due to the ignorance of the seller and buyer (or one of them) regarding the issues, and binding the other to invalid conditions.
⑥ The Rules of Option (Khiyar) in Sale
Islam is a religion of goodwill, which protects the interests and benefits of people, and alleviates their hardships and difficulties. For this reason, the Shari'ah has granted both parties in a sale a certain degree of discretion so that they may reconsider their decision and reflect again on the benefits and interests of the purchased item: if there is a benefit, they may keep the sale, and if there is a fear of loss, they may annul it.
The discretion in a sale refers to the selection of the better option from two scenarios:
◈ To maintain the sale, or
◈ To annul the sale.
Eight types of discretion in sales have been described, of which here is the same detail that has appeared in the text:
① Khiyar al-Majlis
In the place where the sale has taken place, as long as the seller and the buyer remain present in that gathering, each of them has the option to either uphold the sale or to terminate it. The evidence is the statement of the Messenger of Allah ﷺ:
"إِذَا تَبَايَعَ الرَّجُلاَنِ فَكُلُّ وَاحِدٍ مِنْهُمَا بِالخِيَارِ مَا لَمْ يَتَفَرَّقَا وَكَانَا جَمِيعًا"
"When two people engage in a sale, each one has the option to continue the sale until they part ways, meaning they are together."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter: If one of them gives the other the option after the sale, then the sale is binding, Hadith 2112.
Allamah Ibn Qayyim رحمه الله states: "The legislator has provided choice in the transaction to ensure wisdom and benefit for both the seller and the buyer, and that is to achieve complete consent from both parties in the sale, as Allah تعالى has made it a condition for the sale in His statement: "عَنْ تَرَاضٍ مِنْكُمْ " 'Let there be mutual consent in your transactions.'
Reference: Surah An-Nisa: 29/4.
Generally, sales occur in haste; therefore, the merits of Shari'ah necessitate that a limit be set in the sale within which both parties can reflect and, if there is any deficiency, they can rectify it. According to this Hadith, the choice will remain until both are present at the place of sale and do not separate."If both parties, or either one of them, terminate the option (khiyar) at the time of the sale, then the one who has terminated the option will lose their right, and the sale will become binding; because the condition of the option was the right of the contracting parties, and its removal will result in its nullification. The Messenger of Allah ﷺ said: "مَا لَمْ يَتَفَرَّقَا وَكَانَا جَمِيعًا ، أَوْ يُخَيِّرُ أَحَدُهُمَا الْآخَرَ"
"As long as they do not separate, meaning they are together or one gives the other the option."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter: If one of them gives the other the option after the sale, then the sale becomes binding, Hadith 2112.
And it is forbidden for anyone to separate from their brother's gathering solely with the intention that the other does not retain the option to annul the sale. In the raised narration of Amr ibn Shu'aib رحمه الله, it is stated: "وَلاَ يَحِلّ لَهُ أنْ يُفَارِقَهُ خَشْيةَ أنْ يَسْتَقِيلَهُ"
"It is not permissible for anyone to separate from their companion after the sale out of fear that he will not return the transaction."
Reference: Sunan Abi Dawood, Al-Buyu, Chapter: Regarding the option of the two buyers, Hadith 3456, and Jami' at-Tirmidhi, Al-Buyu, Chapter: What has been narrated about the two sellers having the option as long as they do not separate, Hadith 1247.
② Condition of Option
If the seller and buyer agree on a condition of option for a specified period during or after the sale, both will have the right to either uphold or rescind the sale within that period. The Messenger of Allah ﷺ said:
"المُسْلِمُونَ عَلَى شُرُوطِهِمْ"
"Muslims are bound by their mutual conditions."
Reference: Jami` at-Tirmidhi, Book of Judgments, Hadith: 1352.
And Allah's general command is: ﴿يـٰأَيُّهَا الَّذينَ ءامَنوا أَوفوا بِالعُقودِ ...﴿١﴾... سورة المائدة
"O you who have believed! Fulfill [all] contracts."
Reference: Al-Ma'idah: 1:5.
If the condition of option is for one party and not the other, the sale is still valid, because the right of option was available to both, and whatever they mutually agree upon is correct.
③ Option Due to Loss
If a person has been subjected to an unusual loss in the transaction contrary to the norm, he also has the option to either uphold the sale or return it. The Messenger of Allah ﷺ stated:
"لَا ضَرَرَ وَلَا ضِرَارَ"
"Do not cause harm to others, nor should you be harmed."
Reference: Sunan Ibn Majah, Book of Judgments, Hadith: 2341, and Musnad Ahmad: 1/313.
It is also reported from the Prophet ﷺ: "لا يحل مال امرئ مسلم إلا بطيب نفس منه"
"Beware! It is not lawful for a Muslim to take anything from his brother's wealth except that which he gives willingly."
Reference: Sunan al-Daraqutni: 3/25, Hadith: 2861.
It is evident that the one who suffers a loss is not pleased at heart. However, if the loss is minor, that is, according to common practice, then the option will not be established.
Three scenarios have been described for obtaining the option due to loss:
1) Meeting of Caravans (Talaqqi al-Jalb)
That is, those caravans that come to the city (market) to sell their goods, before they enter the city, if someone meets them and buys goods from them, and later it becomes evident that they were kept in the dark and suffered significant loss, then they have the right to rescind the sale and take back the goods. The Messenger of Allah ﷺ said:
"لاَ تَلَقَّوْا الْجَلَبَ، فَمَنْ تَلَقَّاهُ فَاشْتَرَى مِنْهُ، فَإِذَا أَتَى سَيِّدُهُ السُّوقَ، فَهُوَ بِالْخِيَارِ"
"You should not meet the caravans (before they come to the market); whoever meets them and buys something from them, then when the owner comes to the market, he has the option (in case of greater loss) to either keep the sale or rescind it."
Reference: Sahih Muslim, Book of Sales, Chapter on the Prohibition of Meeting Caravans, Hadith 1519.
Sheikh al-Islam Ibn Taymiyyah رحمه الله said: "Those who meet the caravans before they come to the market and engage in sales, the Noble Prophet ﷺ has given them the option because there is a kind of deception and fraud involved."
Reference: Majmu' al-Fatawa of Sheikh al-Islam Ibn Taymiyyah 28/102, with modifications.
This concept has also been explained by Allama Ibn Qayyim رحمه الله.
2) Bidding Merely to Increase Prices (Najsh)
The loss caused by a person who does not wish to buy, but only participates in the bidding to raise the price—this is forbidden. The Messenger of Allah ﷺ said:
"وَلا تَنَاجَشُوا"
"Do not bid merely to raise the price."
Reference: Sahih al-Bukhari, Al-Buyu' Chapter: One should not sell on behalf of his brother... Hadith 2140.
This also includes deceiving the customer, and deception is prohibited.
Similarly, it is also forbidden for the seller to lie to raise the price: for example, saying “I am being offered this price,” or “I bought this item for this price,” or if the price of an item is five rupees and telling the customer “I am selling it for ten rupees” so that he buys it at that price—these are all forbidden, and in such cases, the option to return the sale remains.
3) Deceiving the Simpleton/Uninformed
That is, a person deals with another based on trust and deceives him. Imam Ibn Qayyim رحمه الله states that in the noble Hadith it is mentioned:
"غَبْنُ الْمُسْتَرْسِلِ رِبًا "
"The wealth earned through deceiving the uninformed is forbidden like usury."
Reference: (Weak) Sunan al-Kubra by Al-Bayhaqi 5/349.
This means that a person is unaware of the price, and cannot effectively negotiate with the seller to lower it, but due to sincerity and simplicity, he takes the seller's word as truth. In such a case, if the buyer suffers an extraordinary loss, he will have the option to either uphold or rescind the sale.
Furthermore, there are some people in the markets who engage in deceitful practices. When someone brings their goods to sell, the shopkeepers secretly agree not to set a price for those goods and covertly assign one person to bid behind the seller. When the seller becomes exhausted and realizes that no one is offering more than the person bidding behind him, he is compelled to sell his goods at a lower price. After this, the buyer who was bidding behind shares his profit with the other shopkeepers. This deception, fraud, oppression, and prohibition is unlawful. If the seller becomes aware of this, he has the option to rescind the sale, meaning he can take back his sold goods.
Those who engage in such deceit should abandon this practice and repent. And anyone who is aware of this must express discontent and report it to the responsible individuals so that they may stop them.
④ The Option Due to Deception
The meaning of Tadlees is "to keep someone in the dark." In the context of a sale, Tadlees refers to the seller not disclosing the defect of a defective item, not clarifying the truth, but rather keeping the buyer in the dark and selling it as if it is sound and intact. There are two forms of Tadlees:
① Selling by concealing the defect.
② Presenting the item in such a way that a higher price is obtained.
Tadlees is forbidden. The Shari'ah has granted the buyer the right to return the goods in the case of Tadlees, because the buyer purchased the item at full price believing it to be correct according to the seller's statement. If he had known the truth in time, he would not have paid such a price.
An example of tadlees is selling milk collected in the udders of a goat, cow, or she-camel, so that the buyer thinks the animal always produces more milk. The Prophet ﷺ said: “لَا تُصَرُّوا الْإِبِلَ وَالْغَنَمَ فَمَنْ ابْتَاعَهَا بَعْدُ فَإِنَّهُ بِخَيْرِ النَّظَرَيْنِ بَعْدَ أَنْ يَحْتَلِبَهَا إِنْ شَاءَ أَمْسَكَ وَإِنْ شَاءَ رَدَّهَا وَصَاعَ تَمْرٍ”.
"Do not withhold the milk of the she-camel and the goat; if someone buys it, he has the option after milking it to keep it or return it, and give him one sa' of dates as well."
Reference: Sahih al-Bukhari, Al-Buyu', Chapter on the prohibition for the seller not to withhold the milk of camels, cows, and sheep, Hadith 2148.
Another form of tadlees is to present a defective house in such a way through decoration and embellishment that the buyer or tenant is deceived. Similarly, painting old cars and putting them up for sale to make them appear unused—this is also tadlees. In addition, there are many other forms of tadlees.
It is obligatory for a Muslim to choose truthfulness and to express the reality openly. The Messenger of Allah ﷺ said: "عَنْ حَكِيمِ بْنِ حِزَامٍ رَضِيَ اللَّهُ عَنْهُ أَنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ الْبَيِّعَانِ بِالْخِيَارِ مَا لَمْ يَتَفَرَّقَا قَالَ هَمَّامٌ وَجَدْتُ فِي كِتَابِي يَخْتَارُ ثَلَاثَ مِرَارٍ فَإِنْ صَدَقَا وَبَيَّنَا بُورِكَ لَهُمَا فِي بَيْعِهِمَا وَإِنْ كَذَبَا وَكَتَمَا فَعَسَى أَنْ يَرْبَحَا رِبْحًا وَيُمْحَقَا بَرَكَةَ بَيْعِهِمَا "
"The two parties in a transaction have the option to retract until they separate. If both speak the truth and clarify (the reality of the transaction), then their sale will be blessed; but if both lie and conceal (the truth), then the blessing of their sale will be removed."
Reference: Sahih al-Bukhari, Al-Buyu, Chapter: When the two sellers clarify... Hadith: 2079, and Sahih Muslim, Al-Buyu, Chapter: Truthfulness in Sale and Clarification, Hadith: 1532.
The Noble Prophet ﷺ warned the Ummah that speaking the truth in buying and selling is a cause for blessings, while trading with lies removes blessings. With truthfulness, even a small profit is blessed by Allah, whereas a larger profit gained through lies becomes devoid of blessings.
⑤ Option Due to Defect
The buyer will have the right to return the sale when the purchased item has a defect and the seller did not inform him, or if the seller was unaware of it but it later becomes clear that this defect was present before the sale.
The defect that grants the buyer this right is one that reduces the value of the sold item or diminishes its essence. This will be determined by reputable merchants: what they consider a defect will establish the right, and what they do not consider a defect will not establish the right.
If a defect is discovered after the contract, the buyer has the right to either maintain the sale or receive the difference between the fair price and the price paid, and he also has the right to rescind the sale, return the item, and receive the price paid.
⑥ Lying in Price Quotation
If the seller claims at the time of sale that he is only receiving the cost price, and later this is proven to be false; or if the seller says, "I am sharing this asset with you at cost price," or says, "I sold it at this percentage profit over the cost price," or says, "I have given it to you after deducting this amount from the cost price"—then if it becomes clear in these cases that he lied about the cost price, according to one opinion, the buyer will have the option to either keep the sale or return it. The second opinion of the scholars is that in these cases, the buyer will not have the option; rather, the buyer will pay the original price, and the excess amount will be forfeited. And Allah knows best.
⑦ The Option in Case of Dispute
If there is a disagreement between the seller and the buyer after the sale regarding certain matters, the sale will be annulled. For example, if there is a disagreement about the amount of the price or the nature of the item, and neither party has a decisive proof. In such a case, both will take an oath to confirm their claims. After the oath, if neither is willing to accept the other's statement, then each party will have the right to annul the sale.
⑧ Right of Option in Case of Change of Condition
If the buyer has purchased an item that he saw long before the sale, and after the sale, when he received it, he found that its condition had changed, then the buyer will have the option to annul the sale or to keep it. And Allah knows best.
ھذا ما عندی والله اعلم بالصواب
