6. MERCHANDISE BEFORE THE BUYER TAKES POSSESSION OF IT
MERCHANDISE BEFORE THE BUYER TAKES POSSESSION OF IT
Merchandise is the responsibility of the seller before the buyer has taken possession of it. If such merchandise is destroyed (Ar. talifa, to be finished off or used up) by itself or through an act of the seller, then the agreement is cancelled and no payment is due for it. If the buyer destroys such merchandise, he must pay its price, and his destroying it is considered as having taken possession of it. If a third party destroys such merchandise, the deal is not cancelled but rather the buyer is given a choice to either:
1. cancel the agreement and make the value (of what the third party destroyed) a debt that the third party owes to the seller;
2. or effect the deal, paying the seller the price (if he agrees to affect the deal) and making the third party liable to pay the value (to the buyer).
When one buys something, it is not permissible (or valid) to sell it until one has taken possession of it. (The invalidity of selling. it likewise applies to all transactions disposing of it (such as renting it, giving it away, and so forth).
It is also invalid for the seller to dispose of the price in any way before it has been received from the buyer, unless the new transaction is with the same buyer and involves the very same (article that is the) price.)
But if the price is a financial obligation (that is, an amount of money, unspecified as to which particular pieces of money it is), the seller may ask for a different sort of payment, provided he has not already accepted the payment, as when he sells something for dirhams, but then accepts gold, a garment, or something else instead of them.
Taking possession means:
1. for transportable things such as wheat or barley, that they be transported (N: by the buyer or his representative) (that is, when he moves the merchandise to a place not belonging to the seller, such as the street or the buyer’s house);
2. for things dealt with by hand, such as a garment or book, that they be taken in hand;
3. and for other things, such as a house or land, that they be given over (i.e. the seller gives the buyer control over them, such as by handing the key to him or moving others’ belongings off the property).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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