1. SALE
(The legal basis for sale , prior to scholarly consensus (ijma’), is such Koranic verses as the word of Allah Most High,
“Allah has made sale lawfuL,,” (Quran 2:275).
The more reliable of the two positions reported from our Imam (Allah Most High be well pleased with him) is that this verse is general in meaning, referring to all sales except those specifically excluded by other evidence. For the Prophet (Allah bless him and give him peace) forbade various sales but did not explain the permissible ones, his not doing so proving that the initial presumption for the validity of a sale is that it is lawful. This is also borne out by hadiths such as the one in which the Prophet (Allah bless him and give him peace) was asked what type of earning was best, and he answered,
“The work of a man’s own hand, and every pious sale,”
meaning sales free of cheating and deceit. Hakim related this hadith, which he classified as rigorously authenticated (sahih).
Lexically, sale means to transact something for something else: In Sacred Law it means to exchange an article of property for other property in a particular way. Its integrals are six:
a) the seller;
b) the buyer;
c) the price;
d) the article purchased;
e) the spoken offer;
f) and the spoken acceptance.) (Sale (bay’), wherever it is used in the rulings below, refers to both exchanging goods for money and exchanging them for other goods (i.e. barter).)
THE SPOKEN OFFER AND ACCEPTANCE
A sale is not valid unless there is a spoken offer (by the seller) and spoken acceptance (by the buyer). Offer means the statement of the seller or his agent (wakil) “I sell it to you” or “I make it yours.” Acceptance means the statement of the buyer or his agent “I buy it” or “I take possession of it” or “I accept.”
(Regarding mu’atah, which is giving the seller the price and taking the merchandise without speaking, as when buying something whose cost is well known, Bajuri notes, “Nawawi and a group of scholars have adopted the position that sales conducted by it [mu’atah] are valid for all transactions that people consider sales, since the determining factor therein is the acceptance of both parties, and there is no decisively authenticated primary text stipulating that it be spoken, so common acknowledgement [‘urf, def: f4.5] is the final criterion [as to what legally constitutes acceptance]” (Hashiya al-Shaykh Ibrahim alBajuri (y5), 1.355).)
The category of mu’atah also includes sales conducted by means of vending machines (A: provided it is clear what one is buying before one puts the money in the machine).)
It is permissible for the buyer’s acceptance to precede the offer, such as his saying, “I buy it for so-and-so much,” and for the seller to reply, “I sell it to you.” It is also permissible to say, “Sell It to me for so-and-so much,” and for the seller to reply, “I sell it to you.” All of these are unequivocal expressions. Sales can likewise be affected, if the intention exists, by equivocal expressions such as “Take it for so-and-so much, ” or “I consider it yours for so-and-so much,” thereby intending a transaction with the buyer, who then accepts. If one does not intend a transaction by such expressions, then the sale is nothing (but empty words, and the buyer is obliged to return the merchandise to its owner if it still exists, or replace it if used up while in his possession).
It is obligatory (for the validity of the sale agreement that other conditions be met, among them):
a) that the interval between the offer and its acceptance not be longer than what is customary (the criterion being whether it gives the impression that one is averse to accepting, not merely a brief interval, Other conditions include:
b) that conversation extraneous to the agreement by either of the two parties not intervene between the offer and acceptance, even if inconsiderable, since it gives the impression of nonacceptance;
c) that the offer and its acceptance correspond, for if the offered price is one thousand, and the buyer “accepts” for five hundred, the transaction is invalid;
d) that neither the offer nor acceptance be made conditional (ta’liq) upon an event extraneous to the agreement, such as saying, “I sell it to you, should my father die”;
e) and that the sale not be subject to time stipulations (ta’qit) such as saying, “I sell it to you for a period of one month”; –
because both (d) and (e) vitiate the necessary intention). A mute’s gesture is as binding as a speaker’s words.
THE BUYER AND SELLER
The conditions that must exist in the buyer and seller are:
a) having reached puberty (Imam Ahmad permits the buying and selling of minor items by children, even before they have reached the age of discrimination and without their guardian’s permission);
b) sanity;
c) that one’s disposal over one’s property not be suspended;
d) and that one not be unjustly forced to make the sale. (The agreement of someone unjustly forced to sell his property is invalid because of lack of consent, though it is valid if he is justly forced, as when he is ordered to sell his property to repay a debt.)
e) If a Quran is being purchased for someone, it is obligatory that the person be Muslim. (The same is true of books of hadith and books containing the words and deeds of the early Muslims. “Quran” in this context means any work that contains some of the Quran, even a slight amount.) (This ruling holds for any religious books, even the Tabaqat of Sha’rani (a collection of biographical sketches of Muslims), though the Hanafi school permits non-Muslims to buy or· be given the Quran and other Islamic books.)
f) It is a condition that someone buying weapons be of a people who are not at war with Muslims.
THE OPTION TO CANCEL A SALE AT THE TIME OF THE AGREEMENT
When a sale is affected, both buyer and seller have the option to cancel at the time of the agreement (khiyar al-majlis), meaning the right to nullify the agreement at any time before they (physically) part company, or both waive the right to cancel, or until one of them cancels the sale. (The option to cancel at the time of the agreement exists at every sale, and for its duration, the ownership of the articles exchanged is suspended)
STIPULATING AN OPTION TO CANCEL PERIOD
Both the buyer and seller have the right to stipulate an option to cancel period, an interval during which either party may cancel the agreement, of up to three days (provided the days are consecutive. The option to cancel period is not valid if the two parties stipulate an indeterminate period, or leave it open-ended by merely stipulating “an option to cancel” (though the buyer has the right to return the article because of defects regardless of what they stipulate), or when the period is determinately known, but exceeds three days). The option to cancel may be given (depending on what the buyer and seller agree upon) to both parties, or just one of them (and not the other, or they may give the option to a third party, since the need for this might arise. In any case, both buyer and. seller must agree to the conditions). But such a period may not be stipulated for transactions in which it is unlawful to part company before taking possession of the commodities exchanged (by one or both parties) as is the case in exchanging the kinds of foodstuffs and moneys in which usurious gain (riba) is present, or in buying in advance (salam).
If the option to cancel is given to the seller alone, then the merchandise is considered his property during this period (meaning that he owns the proceeds earned by the property, and its increments such as its milk, eggs, or fruit, and he is obliged to cover its maintenance and other expenses).
If the option to cancel is given to the buyer alone, then the merchandise is considered his property during this period (and the above increments and expenses are his).
If the option to cancel is given to both buyer and seller, then the ownership of the merchandise during this period is suspended, meaning that if the transaction is finalized, it is established that it belonged to the buyer (from the time the agreement was first made, together with its increments and expenses), but if the transaction is cancelled, it is established that it belonged to the seller (meaning that it never left his ownership).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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