Kitāb al-Buyūʿ

Linguistic definition of bayʿ

The exchange of one thing for another, whether or not money is involved. Allāh ﷻ says in the Qurʾān: "Surely Allāh has purchased of the believers their lives."

Not every مال (māl) is مُتَقَوِّم (mutaqawwim); wine, for instance, is māl but not mutaqawwim, since the sharīʿah does not permit one to derive benefit from it.

The word بيع carries dual contrasting senses: it can mean either to buy or to sell. In this it resembles مولى (mawlā), which can mean either slave or master.

Sharʿī definition

The sharʿī definition of بيع is مبادلة مال بمال بالتراضي (mubādalat māl bi-māl bi-l-tarāḍī): the exchange of one item for another by mutual agreement of the two parties.

Offer and acceptance

Ījāb and qabūl are the two pillars of بيع.

Ījāb is the offer.

Qabūl is what is said in reply: the acceptance of the offer.

Past tense

A trade is established only by words in the past tense. If either the offer or the acceptance is in the present or future tense, the trade is not established.

The exact wording need not be بعت and قبلت; words such as رضيت or أعطيتك بكذا or أختته بكذا will suffice.

Choice of acceptance

After an offer is made, the buyer has the choice of accepting it for the whole item, at the price specified, within that majlis.

The seller likewise retains the option of withdrawing his offer for as long as the buyer has not accepted it.

The right of acceptance and the right of withdrawal both stand only as long as the majlis is ongoing.

Offer and acceptance in writing

A trade may also be conducted in writing, and the written form takes the rule of speech. The buyer must accept the offer immediately, however, for the trade to be valid. If the buyer receives the written offer, then engages others in conversation, and only afterwards says "I accept", the trade is not valid: it is treated as acceptance in a different majlis.

The whole item for the whole price

Acceptance must cover the whole item at the full price stated. The buyer cannot accept a part of the item for a part of the price, since no such partial agreement was made.

For instance, a man sells a bunch of ten bananas for ten dollars. The buyer says, "I accept your offer; I will take five bananas for five dollars." This is not valid.

The same scenario becomes valid only if the unit price was stated in advance. If the seller says, "I will sell you ten bananas for ten dollars, each banana priced at one dollar," and the buyer says, "I accept five bananas for five dollars," the trade is valid.

The transaction must take place in one majlis

If the buyer or the seller stands up from the majlis before the offer is accepted, the transaction is void.

Equally, if either party turns to another matter after the offer is made and only afterwards accepts, the acceptance is not valid. If, for example, an offer is made, the buyer falls into conversation with another person, and only later says "I accept", the trade is not valid.

The transaction is binding on offer and acceptance

Once the offer is made and accepted, the trade is concluded, even if the items have not yet changed hands. The seller is then bound to deliver the goods.

After the offer has been made and accepted, neither buyer nor seller may retract; to do so would usurp the right of the other party, which is not permitted.

The principle of عدم رؤية is treated in later chapters.

Trade without counting money but with indication towards it

An item or sum that is pointed to during the offer and acceptance need not be measured, weighed or counted for the transaction to be valid; pointing forecloses ignorance about its weight or value.

For example, a man says, "I will exchange these bananas for ten dollars." The transaction is valid, even though the bananas were not weighed, measured or counted.

Indication is not permitted where it would lead to ribā, as in the trade of one melon for another of a different weight.

The value of money must be clear

Where the money is not pointed to, the transaction is not valid unless its amount and quality are known. Otherwise dispute will arise, and dispute voids the transaction.

For instance, a man says, "I will buy this bunch of bananas for ten dollars," but the dollars are not specified as US or Australian; the transaction is void.

Deferred payments

For instance, a man buying a cloth for ten dollars may pay at once, or after a month if seller and buyer agree.

If the buyer holds an option to return the item within three days, the deferral period begins after the option period expires, on the view of Imām Abū Ḥanīfah.

For example, the seller says, "I sell you this cloth; you have three days to decide whether to return or keep it. The payment is due on the twenty-seventh day." On Imām Abū Ḥanīfah's view, the buyer must pay on the thirtieth day.

The deferral lapses with the death of the borrower, not the death of the lender. So if a man dies owing ten dollars, the debt becomes due immediately. If the lender dies, by contrast, the borrower retains the original term.

The dominant currency is the default

In earlier times the dirhams of Bukhārā, Dimashq, Samarqand, Baṣra and Kūfa each had a different value, since the proportions of gold and base metal in the coin varied between them.

Measurement is not necessary when the quantity is clear

If a man says, "I will sell you all the barley seeds in this pot for ten dollars," the sale is valid: ignorance of the precise weight does not invite dispute, and the items and money are exchanged at once.

The trade of two items of the same genus, however, is not permitted on this basis, since it counts as ribā.

The sale of goods specified in units

Only one qafīz is valid here. The total amount sold and its total price are unknown, so dispute may arise; and any jahālah that may lead to dispute voids the transaction. We therefore fall back on the least known quantity, the trade of one qafīz.

If the total quantity of the heap is specified, the sale is valid in full.

For example, the seller says, "I sell this pile of food to you for one hundred dirhams, every qafīz for one dirham." The sale is valid, since the pile is known to contain one hundred qafīz.

The buyer thereafter has the choice of either taking one qafīz or rejecting the deal, on Imām Abū Ḥanīfah's view.

For Imām Abū Yūsuf and Imām Muḥammad, the transaction is valid whether or not the total quantity of the pile is named. So Imām Shurunbulālī. Al-Hidāyah gives the same view as the apparent ruling: Imām al-Marghīnānī's habit is to place the preferred view last, and he places the position of the two students at the end.

The author of Fatḥ al-Qadīr prefers the view of Imām Abū Ḥanīfah, holding it stronger than that of the Ṣāḥibayn.

The evidence of Imām Abū Ḥanīfah is the stronger; those who prefer the view of the Ṣāḥibayn do so out of considerations of ease.

Sale of goods that have different qualities

This holds even if the total number of sheep is established after the contract, and even if it is established within the same majlis, on the sounder view (as recorded in Sirāj from al-Ḥalwānī). The defect is the ignorance present at the moment of contracting.

The transaction is also void as to a single sheep, since sheep differ from one another. With grains such as barley or wheat, by contrast, one qafīz matches the next, and the sale of one qafīz is valid.

Likewise, every counted item that is متفاوت (varies in quality), such as camels and slaves, is not validly sold under such terms.

Shortage and excess in trade of similar items

The same rule governs all items measured or weighed where partition is unproblematic.

If the heap exceeds the stipulated quantity, the surplus is the seller's, since the contract was struck on a fixed qafīz-count.

Shortage and excess in non-similar items

The cubit-length is treated as a quality of the cloth, and quality cannot be apportioned to the price. If, however, the cubit-length is itself specified ("I will sell you this cloth of ten cubits, every cubit for one dirham"), the buyer does have the option of paying proportionately. The case then parallels the sale of food, and is permitted because the unit (each cubit) has been named.

If the cloth turns out longer than the named count, the excess goes to the buyer and the seller has no option. Length is a quality, so the case is parallel to a buyer who took the item to be defective and finds it sound: he is not obliged to return it.

For instance, a seller sells ten cubits of cloth for ten dirhams, and the buyer finds it twenty cubits long; the buyer keeps the extra ten cubits. Length is a quality of the cloth, and the cubit-length was not specified.

Shortage and excess in non-similar items where units are specified

Here the cubit-length, though still a quality, has been specified per unit, so apportionment is possible. To take the deficient cloth at the full hundred dirhams would be to pay more than one dirham for each cubit.

For instance, the seller says, "I will sell you one hundred cubits for one hundred dirhams, every cubit for a dirham." The buyer finds the cloth to be ninety cubits. He has the choice: take ninety cubits for ninety dirhams, or reject the deal.

The excess length entails an extra payment, so the buyer has the choice of accepting on the original per-cubit terms or rejecting.

Automatic inclusions within a transaction

In the sale of a house (dār, pl. dūr, diyār, diyārāt), the building structure and the courtyard are both included.

Whatever is regarded as part of the item by local custom, and whatever is firmly attached (so cannot be removed without disturbance), passes with the sale by default. So when a man sells a house, the doors, the walls and the trees on the property pass automatically; they are fixed and not ordinarily removed.

A worked example: a man buys a piece of land and discovers a chest of gold buried in it. The gold is not the buyer's, since it is not fixed to the land; it remains the seller's. If the seller then disclaims the gold, even so it does not pass to the buyer; it takes the ruling of lost property (luqṭah).

Date-palms and trees are firmly rooted to the land and so resemble the walls and doors that pass automatically with the sale of a house.

If a man sells a piece of land that has fruit-bearing trees, the trees pass with the sale automatically. The fruits do not.

Qāḍī Khān relates that this rule is restricted to fruit-bearing trees, leaving open whether non-fruit-bearing trees also pass. The sounder view is that they too are included, whether large or small (Tasḥīḥ).

Crops are removable, not fixed to the land, and so take the ruling of furniture in the sale of a house: not included unless named.

The fruits and dates remain the seller's whether they have value at the time of sale or not, on the sounder view (al-Hidāyah). Although the fruits are produced still attached to the tree, they are made for picking, and so resemble crops in the sale of land or furniture in the sale of a house.

Trees that bear no fruit but yield other valuable produce (leaves, flowers; the arāk tree, roses) take the same ruling. Anything a tree produces, edible or otherwise, falls under this rule.

The buyer may stipulate a condition or specify the item at the moment of contracting, with no difference between the two.

The same rule governs the harvest. Picking the crop and delivering it falls to the seller, since it is the seller who has caused the delay in transferring ownership. Likewise in the sale of a house with furniture inside, removing the furniture is the seller's responsibility: a delay in removal delays the buyer's full ownership.

The sale of fruits which have not ripened

If a condition is added that the fruit be left on the tree, the sale becomes invalid.

Whether the fruit has begun to ripen is immaterial; it has value either now or imminently, so the sale is valid. The case is parallel to the sale of a calf that cannot yet walk: the sale is valid, since value will follow.

If the fruits have not yet bloomed and so are not visible, however, the sale is not valid in any view.

If some of the fruits have appeared and others have not, the apparent view of the madhhab, sound on Imām al-Sarakhsī, is that the sale is not valid. Imām al-Ḥalwānī permits the sale once the majority of the fruits have formed, on grounds of trade and necessity. Imām Ibn ʿĀbidīn supports this latter view.

The buyer is responsible for picking the fruits if the seller requests it, since a delay would interfere with the seller's continuing ownership of the tree itself. This applies in the generic case (where the fruits of a tree are sold without further condition), and where the condition of picking is laid on the buyer at contracting. If, by contrast, the condition of picking is laid on the seller, it is the seller who must comply.

Such a condition is not valid: a normal sale exchanges item for money, but here the money has been paid while the item has not yet been delivered, and so the sale is invalid.

If a generic sale is contracted (the fruits of the tree are sold without further condition) and the fruits remain on the tree with the seller's permission, any extra fruits that develop fall to the buyer. If the fruits remain without the seller's permission, the buyer is not entitled to keep the surplus, and the difference in price must be returned to the seller.

Sale of fruits with exclusions is not allowed

What remains after the exclusion is unknown.

For instance, a seller says, "I sell you all the apples on this tree, except fifty apples." If a hundred apples grow, the buyer receives fifty; but if sixty grow, the buyer receives only ten. This uncertainty voids the transaction, since the buyer's quantity is unknown and dispute may follow; and any cause of dispute in a transaction voids it.

By contrast, if fruits from many trees are sold and a single tree is excluded, the sale is valid, since what remains is known and there is no uncertainty. For instance, the seller says, "I sell you the dates from these one thousand date-palms, except the dates from these ten." The transaction is valid.

Sale of wheat, rice and the like

The sale of rice, sesame and the like is also permitted.

It falls to the seller, not the buyer, to separate the wheat from its ear and the legume from its pod. The buyer, after seeing the wheat or legume once it has been removed from its covering, has a choice: he bought what he had not seen, and so may keep it or return it.

The rule applies where the item is sold for money or for goods of a different kind. It would not be permitted to sell wheat in its ear in exchange for wheat, since this is a form of ribā.

For instance, trading twenty kilograms of plain wheat for twenty-five kilograms of wheat in its ear is not permitted, since this resembles ribā.

If, however, fifteen kilograms of wheat in its ear is sold for fifteen kilograms of plain wheat, the trade is permitted, on condition that the wheat-and-ear together weigh fifteen kilograms in total. If after threshing the wheat weighs thirteen kilograms and the ear two, the trade is permitted: it is as if thirteen kilograms of wheat were exchanged for wheat, and two kilograms of wheat for the ear; this does not resemble ribā.

The sale of the date seed, the cotton seed, or the wheat ear by themselves is invalid, since no one buys these in customary practice. People do not buy the seed of the date; they buy the date itself. The same holds of the wheat ear and the cotton seed.

Inclusions when selling a house

The locks pass with the house, as the house cannot be used without them; and once the locks pass, the keys pass with them, since the locks themselves are useless without their keys.

Payment of administrative fees

The wage of the money-checker as set out in Mukhtaṣar al-Qudūrī follows the riwāyah of Ibn Rustum from Imām Muḥammad. On the riwāyah of Ibn Samāʿah, however, that fee falls on the buyer (al-Hidāyah). Al-Muḥīṭ records that both the money-checker's fee and the wage for weighing the goods fall on the buyer, and treats this as the sounder view. Qāḍī Khān holds that the money-checker's fee falls on the buyer in every case, whether the checking takes place before or after the seller has taken the goods. Imām al-Nasafī also supports this position.

The wage for weighing the goods falls on the buyer, since the buyer is the one in need of the goods, and the weighing is the act by which they pass to him.

Delivery of payment and goods

The buyer hands over the money first; if he does not, the seller is not bound to deliver. So if a buyer wishes to buy apples and the seller says, "It is one pound," and the buyer does not hand over the money, the seller may sell the apples to someone else.

This rule applies to the purchase of goods that are present and not deferred. It does not apply where the goods are to be delivered later: the buyer is asked to pay only once the goods are present. So a man buying a car from another country pays only once the car has been imported. "Not deferred" can be illustrated by two cases. First, a man who buys some apples while they are being weighed: payment is due only after weighing is finished. Second, a man who buys a house with furniture not included in the sale: payment is due only after the furniture has been removed.

If the seller hands over the goods before he has received payment, he cannot ask for them back: ownership has passed to the buyer through possession. The buyer is now bound to pay. So if the seller hands over a kilogram of apples and the buyer says, "I have left my money at home," the seller cannot reclaim the apples; the buyer is bound to pay.

Taslīm (delivery) takes place once the buyer can take the goods without obstacle or inconvenience. If the seller hands over a key and says, "Your goods are in this box," taslīm has occurred. If a man buys a horse in a stable and can lead it out without obstacle, taslīm has occurred. If, however, some barrier blocks the easy removal of the horse from the stable, taslīm has not occurred.