Kitāb al-Buyu’

Linguistic definition of بيع

To exchange something with another thing, whether that be money or not. i.e. Allāh ﷻ says in the Qur`ān: Surely Allah has purchased of the believers their lives.

Every مال is not مُتَقَوِّم, for example wine is مال but not مُتَقَوِّم , i.e. one is not able to take benefit from it in Sharī’ah.

The word بيع is a word which has dual contrasting meanings, i.e. it can mean to buy or to sell. This is similar to the word مولى in Arabic which can mean slave or master. 

Shar’i Definition 

The Shar’i definition of بيع is مبادلة مال بمال بالتراضي meaning the exchange of one item with another item with agreement between both parties. 

Offer and Acceptance

البيع ينعقد بالإيجاب والقبول إذا كانا بلفظ الماضي

I’jaab and Qabool are two pillars of بيع. 

I’jaab is to make an offer

Qabool is what is said in reply, the acceptance of the offer

Past tense

A trade needs to be established with words in the past tense. 

A trade is not established if one of the two from the acceptance and offer are in the present or future tense. 

The wording which is used does not need to be بعت and قبلت, rather words such as رضيت or أعطيتك بكذا or أختته بكذا etc. 

Choice of Acceptance

وإذا أوجب أحد المتعاقدين البيع فالآخر بالخيار : إن شاء قبل في المجلس وإن شاء رده

After an offer has been made, the buyer has a choice of accepting this offer, for the whole item, for the price specified in that majlis.

Likewise the seller also has the option of withdrawing his offer, as long as the buyer has not accepted the offer. 

The option of accepting or withdrawing the offer by the buyer and seller respectively will stand as long as the majlis is ongoing. 

Offer and Acceptance in Writing

Trade can also be done in writing, and this will be like speech. However the buyer must make acceptance of the offer straight away in order for the trade to be valid. Such that if the buyer received the offer in writing, started talking with others, then said I have accepted, this trade will not be valid, as it will be similar to accepting the offer in a different majlis. 

The whole item for the whole price 

The acceptance must be to take the whole item, with the full price which was mentioned. Therefore it is not accepted that the buyer will take a part of the item, for a part of the price, as there was no agreement in this. 

For example a person sold a bunch of 10 bananas for $10. The buyer says I have accepted your offer, and will take 5 bananas for $5, this will not be acceptable. 

The above scenario will only be acceptable if the price of each individual item was mentioned. Such as the seller saying, I will sell you 10 bananas for $10, each banana is priced at $1. The buyer says I accept 5 bananas for $5. This trade will be valid. 

Transaction must take in one majlis

وأيهما قام من المجلس قبل القبول بطل الإيجاب

If the buyer or seller stands from the majlis before the offer has been accepted, the transaction will be void. 

Likewise, if one of the two involves themselves in another action after the offer has been made, and thereafter the offer is accepted, this will not be valid. 

For example, an offer was made, the buyer started talking with another person, and thereafter says, I accept, this trade will not be valid. 

Transaction is binding with offer and acceptance

وإذا حصل الإيجاب والقبول لزم البيع

Once the offer has been made, and it has been accepted, the trade is conducted, even if the items have not been handed over yet. Therefore it will become binding on the seller to hand over the items. 

ولا خيار لواحد منهما

Once the offer has been made, and thereafter accepted, the buyer and the seller cannot retract from the transaction, as this will lead to usurping the rights of the other, and this is not permissible.

إلا من عيب أو عدم رؤية

Except in the case where there is a defect in the item, or the item has not been seen (The principle of عدم رؤية will be explained in the upcoming chapters). 

Trade without counting money but indication towards it

والأعواض المشار إليها لا يحتاج إلى معرفة مقدراها في جواز البيع

The item or money which is indicated or pointed out during the offer and acceptance, does not need to be measured or weighed in order for the transaction to be valid. This is because there is no ignorance in the value or weight of the item. 

For example, a person said I will exchange these bananas for $10. Even though the bananas were not weighed, measured or counted the transaction will still be valid. 

Indication will not be permissible if it will lead to riba such as trading one melon for another melon, which is of different weight.

Value of money should be clear 

والأثمان المطلقة لا تصح إلا أن تكون معروفة القدر والصفة

The money which is not indicated towards, transaction with it will not be valid, unless the value and quality of the money is known. This is because it will lead to dispute, which will make the transaction void. 

For example  if one said I will buy the bunch of bananas for $10, but it is not known whether the dollars are referring to US Dollars or Australian dollars, then this transaction will be void. 

Deferred Payments

ويجوز البيع بثمن حال ومؤجل إذا كان الأجل معلوما

Transactions will be permitted by paying immediately, as well as a deferred payment when the time period has been specified. 

For example if a person was to buy a cloth for $10, they can pay this straight away, or after a month if this is agreed by the seller and buyer. 

If a person had a choice for 3 days, then the time period will start after the time period of return has expired according to Imām Abū Ḥanīfah.

For example a person says, I sell you this cloth, you have 3 days to decide if you want to return the item or keep it. The payment needs to be made on the 27th day. Then according to Imām Abū Ḥanīfah the buyer has to pay the amount on the 30th day. 

The time period will lapse with the death of the borrower, not the death of the lender. Therefore if a person died and he owed $10, this debt will need to be paid straight away. On the other hand, if the lender died, the borrower will still have the original time period agreed to pay off the debt. 

Common currency is the default

ومن أطلق الثمن في البيع كان على غالب نقد البلد فإن كانت النقود مختلفة فالبيع فاسد إلا أن يبين أحدها

If one specifies the amount of the trade, without mentioning the currency, then the currency which is most used in the land will be considered. If there are many currencies used and there is a possibility of confusion then the transaction will be void, unless the currency is mentioned. 

In the olden days, there would be dirhams of Bukhara, Dimashq, Samarkand, Basra, Kufa etc. and the value of these would be different as they would have different amounts of gold mixed with other metals to make the coins. 

Measurement is not necessary when amount of goods is clear

ويجوز بيع الطعام والحبوب مكايلة ومجازفة وبإناء بعينه لا يعرف مقدراه وبوزن حجر بعينه لا يعرف مقداره 

The sale of food, and all types of seeds is permitted by measuring or without measuring or weighing. The sale is also permissible with a container, its measurement being unknown. Likewise the sale will be valid by weighing a stone, its weight being unknown. 

For example if a person says I will sell you all the barley seeds in this pot for $10, this will be allowed, as the ignorance of the specific weight of the seeds will not lead to a disagreement. This will be allowed, even though the items have not been measured, as the trade of the item and money is taking place immediately. 

However if one is trading two items from the same genus this will not be allowed, as this will be considered riba.

The sale of goods specified in units

ومن باع صبرة طعام كل قفيز بدرهم جاز البيع في قفيز واحد عند أبي حنيفة إلا أن يسمي جملة قفزانها 

Whoever sells a pile of pood, every qafeez for one dirham, the trade will be valid for only one qafeez according to Imām Abū Ḥanīfah, unless the total amount of qafeez is mentioned. 

Only one qafeez is valid. This is because the total amount being sold, and its price is unknown, therefore this will lead to an argument, and every jahala which could lead to an argument will invalidate a transaction. Therefore we will revert to that which is least and known, which is the trade of one qafeez. 

If however the total amount of the pile is specified, the sale will be valid. 

For example, if the seller says I sell this pile of food to you for 100 dirhams, every qafeez for 1 dirham, this trade will be valid. This is because it is known that there are 100 qafeez in this pile of food. 

Thereafter the buyer will have a choice to either take one qafeez or to reject the deal, according to Imām Abū Ḥanīfah. 

و قالا: يجوز سواء ذكر او لم يذكر

According to Imām Abū Yūsuf and Imām Muḥammad, the transaction will be permissible in both circumstances i.e. when the total amount of the pile has been mentioned or not mentioned. This is the opinion as mentioned by Imām Shurunbulālī. This is also the apparent view in Hidāyah, as Imām Marghinānī mentions the opinion of Imām Abū Yūsuf and Imām Muḥammad last, and his usual habit is to mention the preferred view last. 

The opinion of Imām Abū Hanifah is given preference by the author of Fatḥ, and he has given strength to his opinion over that of Ṣāḥibayn.   

The evidence of Imām Abū Ḥanīfah is stronger when looking at the evidence, however those who have given preference to the view of Ṣāḥibayn is due to ease.

Sale of goods which have different qualities 

ومن باع قطيع غنم كل شاة بدرهم فالبيع فاسد في جميعها 

Whoever buys a flock of sheep, every sheep for a dirham, then the transaction is invalid for all of it. 

This is even if the total amount of sheep is known after the transaction has taken place, even if this occurs in one majlis according to the correct view (as found in Sirāj from Halwani) . This is because there was ignorance at the time of trading. 

Likewise, the transaction will be void even in the case of one sheep, as there are differences amongst the sheep. One sheep is not the same as another sheep. However in the case of food such as seeds, barley, wheat etc. one qafeez is valid as each qafeez is the same. 

وكذلك من باع ثوبا مذارعة كل ذراع بدرهم ولم يسم جمله الذرعان

Likewise whoever sells a cloth measured by arms length, every arms length for a dirham and the total amount of arms length is not mentioned, then the sale is not allowed. 

Likewise, every item which is counted and is different (متافوت) like camels, slaves and the like, their trade will not be permissible in similar circumstances. 

Shortage and excess in trade of similar items

 ومن ابتاع صبرة على أنها مائةُ قفيزٍ بمائة درهمٍ فوجدها أقل كان المشتري بالخيار : إن شاء أخذ الموجود بحصته من الثمن وإن شاء فسخ البيع

Whoever purchase a pile of food which is 100 qafeez for 100 dirhams, and thereafter they find it to be less than 100 qafeez, then the buyer has a choice; If they want they can take what is present by paying proportionately from the price, otherwise they may withdraw and reject the transaction

Likewise, the same ruling will apply for all items which are weighed or measured and in which splitting it is not problematic.

 وإن وجدها أكثر فالزيادة للبائع

If the buyer finds the pile to be more than that which was mentioned, then the extra amount is for the seller. This is because the transaction was agreed upon a fixed amount of qafeez.

Shortage and excess in non-similar items

ومن اشترى ثوبا على أنه عشرة أذرع بعشرة دراهم أو أرضا على أنها مائة ذراع بمائة درهم فوجدها أقل فالمشتري بالخيار : إن شاء أخذها بجملة الثمن وإن شاء تركها 

Whoever buys a cloth, 10 arms length for 10 dirham, or they buy a piece of land, 100 arms length for 100 dirhams, and thereafter they find it to be less than that which was agreed, the buyer will have a choice; if he wishes he can take it for the total price which was mentioned, otherwise he can reject the deal. 

This is because the arms length is considered a quality of the cloth, and quality cannot be measured proportionately with the price. However if the quality, which is arms length, is specified, such as one saying I will sell you this cloth of 10 arms length, every arms length is 1 dirham, then in this case, even though the arms length is considered a quality, the buyer can have the choice of paying proportionately. This is similar to the case of food, and is only allowed as the quality, i.e. each arms length has been specified.

وإن وجدها أكثر من الذراع الذي سماه فهو المشتري ولا خيار للبائع

If the buyer finds the item to be longer in arms length than that which was mentioned, then this will be for the buyer, and there is no choice for the seller. This is because arms length is considered a quality, therefore it will be as if the buyer has bought a defective item and found it to be not defective. In this case the buyer does not need to return the item.

For example, if a seller sold 10 arms length of cloth for 10 dirhams, thereafter the buyer found it to be 20 arms length, the buyer will keep the extra 10 arms length of cloth. This is because length is considered a quality for clothing. Furthermore the arms length i.e. the quality, was not mentioned specifically. 

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

 وإن قال : بعتكها على أنها مائة ذراع بمائة درهم كل ذراع بدرهم فوجدها ناقصة فهو الخيار : إن شاء أخذها بحصتها من الثمن وإن شاء تركها

If the seller says; I have sold 100 arms length fro 100 dirham, every arms length for a dirham, and thereafter the buyer finds it to be less than 100 arms length he has a choice; if he wants he can take what is there for a proportion of the price, otherwise he may leave the transaction. 

Even though arms length is a quality, as each arms length has been specified, this will be allowed. This is because if the seller was to take all of it (the deficient amount) for the total price of 100 dirhams, he would not have paid a dirham for each arms length.

For example, the seller says I will sell you 100 arms length for 100 dirham, every arms length for a dirham. The buyer then finds it to be 90 arms length. The buyer has a choice, he may buy the 90 arms length for 90 dirhams, or reject the deal.

وإن وجدها زائدة فالمشتري بالخيار : إن شاء أخذ الجيمع كل ذراع بدرهم وإن شاء فسخ البيع

And if it is found to be in excess, ie. more than 100 arms length, then the buyer has a choice; if he wishes he may take all of it, every arms length for 1 dirham, and if he wants he may cancel the transaction. As the buyer has been given an excess amount of clothing, this will necessitate extra payment, therefore the buyer has a choice to accept it on the terms of the original agreement (every every arms length for a dirham) or he may reject it. 

Automatic inclusions within a transaction 

ومن باع دارا دخل بناؤها في البيع وإن لم يسمه

Whoever sells a dār (House), its structure is included in the sale, even if it is not  mentioned. Therefore when selling a house (dār pl. dūr, diyār, diyārāt) the building structure as well as the courtyard of the house would be considered. 

Furthermore, that which is considered to be part of an item being sold  according to local custom, as well as that which is connected firmly (i.e. those things which are part of the structure and are not removed) will be included in the sale, without needing to mention them specifically. For example, a person sold a house. The doors of the house, as well the walls and trees in the property will automatically be included in the sale of the house, without the need to specify them. This is because these are fixed items which are not usually removed. 

Example; A person bought a piece of land. They found a chest of gold. This gold does not belong to the buyer, as it is not a fixed to the land. Rather it will belong to the owner. If thereafter the owner declares that this chest of gold is not mine, even then this chest of gold will enter under the possession of the buyer, rather it will take the ruling of lost property.  

ومن باع أرضا دخل ما فيها من النخل والشجر في البيع وإن لم يسمه 

Whoever sells some land, that which is in it from date-palms and trees will be included in the transaction, even if it is not specified. This is because the date-palm and trees are firmly connected to the piece of land, and therefore resemble the sale of a house wherein the walls and doors etc. are included by default. 

If a person sells a piece of land, and this piece of land has fruit-bearing trees, the fruit-bearing trees will be automatically included in the sale, without the need to specify them. However the fruits of the trees are not automatically included in the sale.

Qadikhan relates that this ruling is only regarding trees which are fruit-bearing. Therefore, there is some difference of opinion as to whether non-fruit-bearing trees are automatically included. The more correct opinion is that they are also included in this type of transaction, whether they be small or big trees (Tashīh). 

ولا يدخل الزرع في بيع الأرض إلا بالتسمية

Crops are not automatically included in the sale of land, unless it is specified. This is because crops are considered removable items and not fixed to the land. Therefore, the crops will take the same ruling as furniture when a house is sold. The furniture will not be automatically included in the sale, unless it is specified.  

 ومن باع نخلا أو شجرا فيه ثمر فثمرته للبائع إلا أن يشترطها المبتاع ويقال للبائع : اقطعها وسلم المبيع

Whoever sells a date-palm or fruit-bearing tree, the fruits (and dates) are for the seller, unless the buyer stipulates a condition at the time of the sale and says to the buyer, pick it and deliver the sold goods (to the buyer). 

The fruits and dates will belong to the seller, regardless of whether they have a value or not at the time of sale, according to the more correct opinion (Hidāyah). This is because the fruits, even though they are created attached to the tree, are meant for picking, and therefore resemble crops in the sale of land, or furniture in the sale of a house. 

Those trees which are not fruit-bearing but bear other valuable leaves, flowers etc. such as the arak tree, or roses, will also be included under this ruling. Therefore we can say that anything which is produced by a tree, whether it is eaten or not eaten, will be considered like a fruit-bearing tree.

One may stipulate a condition, or may specify the item at the time of sale (as in the previous example), and there is no difference between the two. 

The above rling is the same when harvesting crops. It is for the seller to ensure the crops are harvested and handed over. This is because the transfer of ownership to the buyer has been delayed due to the seller. Likewise, when selling a house which has furniture inside, it is the responsibility of the seller to remove the furniture. This is because a delay in removing the furniture results in a delay of complete ownership for the buyer. 

Sale of fruits which have not ripened

 ومن باع ثمرة لم يبد صلاحها أو قد بدا جاز البيع ووجب على المشتري قطعها في الحال

Whoever sells fruits, whether its ripening has begun or not, the sale is valid. It will become incumbent upon the buyer to pick the fruit immediately. If a condition is made to leave the dates on the date palm (or fruits on the tree) the sale will be rendered invalid.

It does not matter whether the fruits have started to ripen or not, as it will either be valuable at the time of sale, or in the near future, and therefore it’s sale is valid. It is similar to buying a calf who cannot walk yet, its sale will be valid, as it will become valuable in the future. 

If however the fruits of the tree have not yet bloomed and therefore not visible, its sale will not be valid according to all.

If some of the fruits have appeared and others have not, then its sale is not valid according to the apparent view of the madhab, and this is authenticated by Imām Sarakhsi. Imām Halwānī has permitted the sale if the majority of the fruits have formed, due to the trade of people and its necessity therein. Imām Ābidīn has given strength to this opinion. 

The buyer will have the responsibility of picking the fruits if requested by the seller. This is because a delay in picking the fruits will interfere with the ownership of the seller, who owns the tree. This is the case if it is a generic sale, where one sold the fruits of a tree without any extra conditions, or if the condition of picking the fruits was mentioned at the time of sale. If however the condition of picking the fruits was attributed to the seller at the time of the transaction, it will be the duty of the seller to fulfil this. 

فإن شرط تركها على النخل فسد البيع

If a condition is made that the fruits be left on the tree, then the sale will be invalid. This is because the condition is not valid, as in a normal transaction there is an exchange of an item for money, however in this case, even though the money has been handed over, the item has not, and therefore the sale will be invalid. 

If a generic sale is made, ie. it is agreed that the fruits of the tree will be sold, and the fruits are left on the tree with the permission of the seller, the extra fruits would be permitted for the buyer. If however the fruits are left without the permission of the seller, the excess fruit will not be allowed to be kept by the buyer, and the difference in price should be given to the seller.

Sale of fruits with exclusions is not allowed

ولا يجوز أن يبيع ثمرة ويستثني منها أرطالا معلومة

It is not permissible to sell fruits, and exclude from the sale a specific measure. This is because that which is remaining after excluding some fruits will be an unknown amount. 

For example, if the seller said I sell all the apples on this tree to you, except 50 apples. It is possible that 100 apples grow from the tree, so the buyer will receive 50 apples, however it is also possible that 60 apples grow from the tree, and therefore the buyer would receive only 10 apples. This uncertainty would make the transaction invalid, as the amount the buyer will receive is unknown and can lead to a dispute, and every thing which leads to a dispute in a transaction invalidates the transaction.

In contrast, if the fruits from many trees are sold, and a single tree is excluded from the transaction, this sale would be valid, as that which is remaining is known, and there is no uncertainty. For example a seller says “I sell you the dates from these 1000 date-palms except the dates from these 10 date-palms, this transaction will be valid.  

Sale of wheat, rice and the like

ويجوز بيع الحنطة في سنبلها والباقلاء في قشرها

It is permissible to sell wheat in its ear, and legume in its pod. Likewise the sale of rice, sesame and the like will also be permitted. 

The seller will be required to separate the wheat from its ear, and the legume from its pod, not the buyer. The buyer has a choice after seeing the wheat and legume which has been removed from its covering. This is because the buyer has bought something which he has not seen,  and therefore after seeing it he will have a choice to take it or return it. 

This ruling applies when one sells an item in exchange for money or goods which are not of the same type. For example, it will not be permissible to sell the wheat in its ear in exchange for wheat, as this will be a form of riba (interest). 

For example, if a person wanted to trade 20kg of wheat (not in its ear) for 25kg of wheat in its ear, it would not be permissible as this will resemble riba. 

However, if a person sold 15kg of wheat  in its ear in exchange for 15kg of wheat not in its ear, this would be permissible, on the condition that when the wheat is taken out of its ear, the total weight of the ear and wheat is 15kg. For example, after taking out the wheat grains from its ear, the wheat weighs 13kg, and the ear weighs 2kg, as the total is 15kg this would be allowed. This is because it is as if one has traded 13kg of wheat in exchange for wheat, and 2kg of wheat in exchange for its ear. As this does not resemble riba, it will be permissible. 

The sale of the date seed, cotton seed, the ear of wheat will be invalid as it is non-existent in common practice. Such that, no one mentions that they want to buy the seed of the date, rather they would say I want to buy a date, likewise no one buys the wheat ear or cotton seed. 

Inclusions when selling a house

ومن باع دارا دخل في المبيع مفاتيح أغلاقها

Whoever buys a house, the keys of the locks will be included in the sale. 

This is because the locks are included in the sale of the house. The reason the locks are included in the sale is because it is necessary to use the house, and as the locks are included in the sale, therefore the keys will automatically be included, as one cannot benefit from the sale without it. 

Payment of administrative fees

وأجرة الكيال وناقد الثمن على البائع

The wages of the person weighing, and the money-checker are due on the seller. 

As for paying the wages to the money-checker, the ruling which has been mentioned in Qudoori is according to the riwayah of Ibn Rustum from Imām Muḥammad. However, according to the riwayah of Ibn Samā’ah, the wages will be due on the buyer (Hidāyah). It is mentioned in Muhīṭ that the wages for the money-checker and weighing the goods are due on the buyer, and that is the more correct opinion. Qadikhan mentions that the wages for the money-checker are due in all circumstances; whether the checking is done before the seller takes hold of the goods or after taking hold of the goods. Imām Nasafi has also given support to this opinion.

 وأجرة وزان الثمن على المشتري

The wages for the one weighing the goods is to be paid by the buyer. This is because the buyer is in need of the goods, and by weighing the goods will be transferred. 

Delivery of payment & goods

ومن باع سلعة بثمن قيل للمشتري : ادفع الثمن أولا فإذا دفع قيل للبائع : سلم البيع

Whoever sells a commodity in exchange for a price, it will be said to the buyer, hand over the money first. Once it has been handed over, it will be said to the seller, hand over the goods. 

The buyer needs to hand over the money first. If he does not hand over the money first the buyer will not be obliged to sell to him. For example if a buyer wanted to buy some apples, the seller says it is £1. If the buyer does not hand over the money then the seller may sell the apples to another person. 

This ruling is applicable when buying goods which are present, and not delayed. Therefore this is not the case when goods will be handed over at a later date, and it will only be said to the buyer to hand over the money when the goods are present. For example, if  a person bought a car from another country, they will only be required to pay the money when the car has been imported. The meaning of not delayed can be explained in the following two examples. The first example is when one buys some apples and it is being weighed, therefore the sale has been delayed. In this case, the buyer will be asked to hand over the money only after the apples have finished being weighed. The second example is that of a person buying a house which has furniture in it, and the furniture has not been included in the sale. Therefore the money needs to be handed over after the furniture has been removed, and not before. 

If the seller hands over the goods before taking hold of the payment, it is not for him to seek a return of the goods, as the ownership of the goods has transferred to the buyer by him taking possession of the goods. Rather it becomes binding on the buyer to pay for the goods. For example, the seller handed over 1kg of apples, and the buyer said I have left my money in my house, it is not for the seller to ask for the return of the items, rather it is binding on the buyer to pay for the items. 

ومن باع سلعة بسلعة أو ثمنا بثمن قيل لهما سلما معا

Whoever sells goods in exchange for goods, or money in exchange for money, it will be said to both the buyer and the seller, hand over your goods or money at the same time.

Tasleem (exchange) takes place when it is possible for the buyer to take hold of the goods without any barriers and inconvenience. Such that if the seller was to hand over keys and say that your goods are in this box, then tasleem will be considered to have taken place. For example, if a person was to sell a horse in a stable, and thereafter the buyer is able to take the horse from the stable without any barriers or difficulty, then tasleem will be considered to have taken place. If however, to take the horse from the stable there is a barrier preventing the taking of the horse with ease, then tasleem will not be considered to have taken place. 

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