2. THE THINGS EXCHANGED IN A TRANSACTION
(Things here refers to both the merchandise and its price.)
Five conditions must exist in any article transacted. It must:
a) be pure (in itself, or if affected with filth, it must be capable of being purified by washing);
b) be useful;
c) be deliverable (by the seller to the buyer, meaning that the buyer is able to take possession of it);
d) be the property of the seller or the person whom the seller has been authorized to represent;
e) and be determinately known (ma’lum) (to the buyer and seller, as to which particular thing it is, how much it is, and what kind it is, in order to protect against chance or risk (gharar), because of the hadith related by Muslim that the Prophet (Allah bless him and give him peace) forbade the transaction of whatever involves chance or risk).
PURITY
It is invalid to transact something that is impure in itself (najasa, def: e14.1) such as a dog, or something affected with filth that cannot be purified (by washing), like milk or shortening, though if it can be, like a garment, then it may be transacted.
USEFULNESS
It is invalid to transact something which is not useful (0: whether the reason for invalidity is the article’s baseness or the smallness of the amount being dealt with,) such as vermin, a single grain of wheat, or unlawful musical instruments (dis: r40) (0: such as the mandolin or flute, since there is no lawful benefit in them).
DELIVERABILITY
It is invalid to transact something undeliverable, such as a bird on the wing or something that a third party has wrongfully taken from one, though if one sells the latter to a buyer who is able to take it back from the third party, the sale is valid; while if the buyer is unable to take it from him, then the buyer has the option to either declare the sale binding or cancel it. It is invalid to transact a particular half of a whole object such as a vessel, sword, or garment (since the buyer cannot take possession of that part without breaking or cutting the article, involving the lessening and loss of property), or part of anything whose value is diminished by cutting or breaking, though if it does not diminish its value, as with a bolt of heavy cloth, such portions maybe sold.
LAWFUL DISPOSAL OVER THE PROPERTY
It is not valid for the owner of an article that has been put up as collateral to sell it without the permission of the person to whom the collateral has been given. Nor is it valid to sell property belonging to another, unless the seller is the owner’s guardian or authorized representative.
BEING DETERMINATEL Y KNOWN
It is not valid to sell property not determinately identified such as “one of these two garments” (0: since “one of them” is not an identification. Likewise, with saying, “I sell you one of these sheep.” It makes no difference whether all the objects are of equal or unequal value).
It is not valid to transact a particular thing that is not in view (meaning that it has not been seen by both buyer and selIer or by one of them) such as saying, “I sell you the Mervian robe I have up my sleeve,” or “the black horse that is in my stable.” But if the buyer has seen it before and the article is something that does not generally change within the time that has elapsed since it was last seen, then such sales are valid.
It is permissible to sell something like a pile of wheat that is in plain view when its weight is unknown, or to sell something for a heap of silver that is visible when the silver’s weight is unknown, for seeing is sufficient.
The selling and buying of a blind person are not valid. He must commission another to buy and sell for him (though the Hanafi, Maliki, and Hanbali schools permit him to buy and sell for himself). It is valid for a blind person to buy in advance or for another to buy in advance from him, provided the payment is forwarded to and held by the person being. bought from in advance.
USURIOUS GAIN (RIBA)
(The word riba lexically means increment. In Sacred Law it is (of two types, the first being usurious gain (rib a) in selling, which is) an agreement for a specific recompense whose equivalence to the merchandise is unknown) according to the standards of the Law at the time of the transaction, or in which the exchange of the two properties transacted is delayed, or one of them is delayed. (The second type concerns loans, and consists of any loan by which the lender obtains some benefit (di.) The basis for its unlawfulness, prior to scholarly consensus (ijma’, def: b7), is such Koranic verses as:
“Allah permits trade but forbids usurious gain” (Quran 2:275), and,
“Fear Allah and relinquish what remains of usury, if you are believers” (Quran 2:278), and such hadiths as that related by Muslim,
“The Messenger of Allah (Allah bless him and give him peace) cursed whoever eats of usurious gain (riba), feeds another with it, writes an agreement involving it, or acts as a witness to it.”
Another hadith, in al-Mustadrak (by Hakim), relates that the Prophet (Allah bless him and give him peace) said,
“Usurious gain is of seventy kinds, the least of which is as bad as a man marrying his mother.”)
USURIOUS GAIN IN SALES OF FOODSTUFFS. GOLD AND SILVER
Gain is not unlawful except in certain exchanges involving (human) foodstuffs, gold, and silver (or other money) (which, is the ruling for usurious gain in sales. As for usurious gain or interest from loans, it is unlawful for any type of property whatever). The determining factor in the prohibition of usurious gain in foodstuffs is their being edible, and in gold and silver, their being the value of things.
When a foodstuff is sold for a foodstuff of the same kind, such as wheat exchanged for wheat (or when gold is traded for gold), three conditions are obligatory:
a) exact equivalence in amount (which must be made certain of, this stipulation precluding exchanges of foodstuffs, gold, or silver in which the amounts are not known, for such sales are not valid even if the two quantities transacted subsequently turnout to be equal, because of the ignorance of their equivalence at the time of the transaction, since ignorance of it is the same as actual nonequivalence);
b) that the properties transacted be in the respective possession of buyer and seller before they part company;
c) and immediacy (such that the agreement does not mention any delay in the exchange, even if brief).
When foodstuffs are sold for foodstuffs of a different kind, such as wheat for barley (or when gold is sold for silver), only two conditions are obligatory:
a) that the exchange be immediate;
b) and that the properties exchanged be in the respective possession of buyer and seller before they part company. If these two conditions are met, the two commodities exchanged may differ in amount.
TRANSACTING GOLD AND SILVER
When gold is exchanged for gold, or silver for silver, conditions (a, b, c) are obligatory. If gold is exchanged for silver, their amounts may differ, but conditions (a, b) are obligatory.
When foodstuffs are sold for gold or silver, the transaction is unconditionally valid (meaning none of the above conditions are necessary).
Equivalence in amount for commodities customarily sold by volume is reckoned according to volume (even if weights differ), and for articles customarily sold by weight according to weight. Thus, it is invalid to sell a pound of wheat for a pound of wheat when there is a difference between the two’s volume, though it is valid to sell a bushel of wheat for a bushel of wheat even when their weights differ.
Customarily transacted by weight or volume means according to the prevalent custom in the Hijaz during the time of the Messenger of Allah (Allah bless him and give him peace). If this is unknown, then according to the custom of the town where the transaction takes place. If the foodstuff is of a kind not customarily exchanged by either weight or volume, and it has no dried storage state, such as cucumbers, quinces, or citrons, then it may not be traded for its own sort.
Equivalence in amount is not applicable to foodstuffs until they are completed, meaning, for fruits, in the dried storage state. It is invalid to trade fresh dates for fresh dates, fresh dates for dried dates, fresh grapes for fresh grapes, or fresh grapes for raisins. Types of dates and grapes not sold as dried dates and raisins may not be exchanged for their own sort. It is also invalid (because of ignorance of their equivalence) to exchange:
1. flour for flour (when they are of the same type);
2. flour for wheat;
3. bread for bread (when of the same type);
4. a pure foodstuff for a mixed one;
5. cooked food for uncooked, or cooked food for other cooked food, unless the cooking is very slight, such as separating honey (from the comb) or milkfat (from milk).
It is not permissible to exchange (for example) a measure of dates plus one dirham for two dirhams, or for two measures of dates, or for a measure of dates and a dirham. Nor is it permissible to exchange a measure of dates and a garment for two measures, nor a dirham and a garment for two dirhams.
It is invalid to transact meat for a live animal (even when the two are not of the same kind of animal).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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