Chapter 34: Sales
This includes hire, partnership and all sale transactions, like cash sales and selling a debt, sound and invalid sales, the definition of the sale and transfer of goods. There are three essential elements of the sale:
1. The seller and the buyer, both of whom must possess discrimination and so a sale of a child or mad person is not valid, and possess legal responsibility, which is a precondition for the sale being binding. Islam is a precondition for buying a Qur'an or a Muslim slave.2. The second is the price, which must be pure, consist of something which has a use, be something which can be handed over, known by both parties and something whose sale is not forbidden.
3. The third element is the form of the transaction which is the offer and acceptance, or that which indicates acceptance like customary behaviour in such matters.
The author begins the chapter with the words of Allah:
34.1 Exchange of money
"Allah has allowed trade and made usury unlawful." (2:274)
34.1a. Legal status of usury
[ The Sunna and consensus make it unlawful. If someone states that usury is lawful, there is no disagreement that he is an unbeliever.]
34.1b. Usury in extending the terms of a debt
The usury practised in the Jahiliyya in debts was that when they were due, they were either paid or delayed in exchange for a payment of usury.
[ In exchange for a delay, an increase was paid.]
34.1c. Usury in exchange
Besides usury in exchange for delay, usury also consists of selling silver for silver, hand to hand, in unequal amounts. The same applies in the case of gold for gold. Silver for silver and gold for gold are not permitted except like for like, hand to hand. Gold for silver is usury except hand to hand.
[ The basis for the prohibition is that the Prophet, may Allah bless him and grant him peace, said, "Do not sell gold for gold, except like for like." The same applies to silver. "Hand to hand" means that the transaction is immediate.]
34.2 Exchanges involving foodstuffs
34.2a. Immediacy in the exchange of stored foodstuffs
The same applies to food grains, beans and similar foods or condiments which can be stored. It is not permitted to exchange one category of them for the same category except hand to hand like for like. It is not permitted for there to be a delay in this.
[This includes barley, millet, rice and all such grains. This would also apply to such condiments as vinegar and honey. The fact that a delay is not permissible is stressed when he says, "hand to hand" which means it must be immediate and direct. One considers likeness in terms of legal weighing or measurement. If no criterion has been transmitted from the Lawgiver about something, then one uses whatever the customary criterion is.]
34.2b. Delay not allowed in foodstuffs
It is not permitted to exchange food for food with a delay, whether in the same category or different categories, and whether that can be stored or not.
[ This includes fruits like pomegranates and melons because a delay would entail usury.]
34.2c. Exchange of perishables
There is nothing wrong with exchanging fruits and vegetables which cannot stored in unequal amounts, even if they are of the same kind, provided it is hand to hand.
[Fruits which cannot be stored are like apricots and apples. Disparity is permitted in them, even if they are stored in rare cases in certain climates. This is like the case with pears, in which there can be disparity in the well-known position. ]
It is not permitted to have a disparity in the same category of dried fruits and other condiments, food and drink which can be stored, except for water. There is nothing strong in exchanging different categories of other grains and fruit and foods in equal amounts from hand to hand. It is not permitted to have a disparity in the same category except in the case of fresh fruits and vegetables.
[ If the items are usually storable, like walnuts and almonds, then disparity is not permitted. This is a weak position in the School. The well-known position is that disparity is permitted in then,
Disparity is forbidden in food drink and condiments, food like honey and vinegar. Disparity is permitted in water, but it is not permitted to sell it for food on credit according to the well-known position.
The allowance for disparity in fruit and vegetables is based on the sound hadith in which the Prophet, may Allah bless him and grant him peace, said "When the categories are different, then sell however you wish."
His final statement includes storable and unstorable, and this contradicts what he said before about storable fruits, but we already stated that the well-known position is that disparity is allowed in them. The difference between the permission for fresh fruit and vegetables and its prohibition in the case of foodstuffs is that foodstuffs include that which can be stored and which is a major source of nourishment. Even if fruits and vegetables are stored at times, they are not a major food source.
Then he goes on to discuss those categories in which major disparity is not permitted.]
34.2d. Categories of foods in which there can be no disparity
Wheat, barley and sult-barley comprise one category in respect of lawfulness and or unlawfulness. All sorts of raisins comprise one category. All sorts of dates comprise one category. Beans have different categories in regard to sales. The position of Malik varies regarding this, but his position about them being one category for zakat purposes does not vary.
[ Sult is huskless barley. There can be no disparity in the exchange of raisins or dates although they have different varieties. Ibn al-Qasim said that they have different categories while Ibn Wahb states that they are the same category. For zakat purposes, the Mudawwana states that they are a single category.]
34.2e. Meat
The meat of the quadrupeds and wild animals is considered to one category, the meat of all types of fowl is one category, and the flesh of all water creatures is one category. Fat falls into the category of the flesh from which it is extracted.
[Quadrupeds are: camels, cattle, sheep and goats. Wild animals include gazelles and wildebeests. The category of fowls includes both wild birds and domestic ones. The flesh of an animal cannot be sold for its fat except like for like, hand to hand. The same applies to fish oil for fish: it can only be like for like, hand to hand.]
34.2f. Animal products
Yoghurt, cheese and butter are classified according to the category of the animals from which they are taken.
[ This is one of the unclear areas of the Risala as to whether they can be sold one for the other. Malik and his people do not permit that. Al-Jazuli says that what is meant is that the types of milk are one category, cheese is one category and butter is one category, and they are to sold like for like without disparity.]
34.3 Selling goods not yet in one's possession
34.3a. Foods which cannot be sold before possession
Someone who buys food is not permitted to sell it before he takes possession of it, provided that the purchase was by weight, volume or number rather than unmeasured. That is the case for every food, condiment or drink except water.
[It is confirmed that the Prophet, may Allah bless him and grant him peace, forbade that. This general prohibition is then restricted to the categories mentioned. "Unmeasured" (juzâf) refers a sale without measure, weight or number. In such an (unmeasured) sale it is permitted to re-sell the goods before taking possession of them according to the well-known position because ownership is achieved by the contract. Therefore if it is destroyed before he takes possession of it, it is the buyer's liability. Water is excepted because it is not a food.]
34.3b. Medicines and non-oil crops
Medicines and crops which are not pressed for oil are not among the foods which it is forbidden to sell before taking possession of them or which cannot be exchanged for unequal amounts of the same category.
[ Like honey which is compounded with other drugs and made into a medicine. Crops which are not pressed normally are like onion seeds, chard and white radish seeds, but not seeds like sesame and olives which are pressed for oil. It also includes things like onions, garlic, coriander, cumin, fennel and pepper. It is permitted to sell them before receiving them and disparity in amounts is also permitted.]
34.3c. Selling borrowed food before taking possession of it
There is nothing wrong with selling borrowed food before taking possession of it.
[It is permitted for the one who borrows to sell it before he has full possession of the loan, provided it is a cash sale. That is not permitted in a credit sale because if the borrower were to sell it on credit, that would invalid since it would be selling a debt for a debt. ]
34.3d. Partnership, cost resale and revocation of sales are permitted
There is nothing wrong with partnership in buying, in cost resale, or in revocation of a sale before taking possession, in the case of food which is measured.
[There is nothing wrong with partnership in measured food stuffs before taking possession. That is when someone has a partner in some of it. There is nothing wrong in cost resale (tawliya), which is when he sells the commodity to someone for the same price he paid for it. There is nothing wrong in revocation, which is when the buyer withdraws from the seller or vice versa.]
34.4 Transactions which entail risk
34.4a. Contracts which entail risk are not permitted
Every sales contract, hire or lease which contains danger or risk in respect of the price, the item purchased or the term at which payment is due is not permitted. It is not permitted to sell something uncertain or to sell something unknown or to sell to an unknown term.
[ Danger is when it is not certain that the commodity exists, as when someone says, "Sell me your horse in exchange for my profits tomorrow." Risk is when one is certain something exists but there are doubts about its soundness, as in selling fruits before they are ripe.
An example of what is forbidden when there is risk in the price is when someone buys goods in exchange for his stray camel. In regard to the purchased item it is like when someone buys a runaway slave. Risk in the term is when someone buys goods against the arrival of Zayd when he does not know when he will actually come.]
34.5 Selling goods with hidden defects
34.5a. Deceit is not permitted
In selling, it is not permitted to conceal faults or to adulterate things, nor to overrate or mislead, nor to conceal defects. It is not permitted to mix the bad with the good, nor to conceal something about the goods which, if known, would make the buyer dislike it or which would reduce the price if were known.
[ Concealment (tadlis) is to know that there is a fault in the goods, but to conceal that from the buyer. Adulteration is to add something which is not part of the thing, like adding water to honey. Overrating is deceit by lying about the price as when someone says, "I bought it for twenty dinars and I will give you it to you for less!" Misleading is to gull with words as when the seller tells him, "Buy it from me and I will give you a reduction!"Nor is it permitted to mix poor wheat with good wheat.
It is not permitted to conceal defects which would put off the buyer, such as selling cloth which has been previously used as a shroud or by a leper. Something which would reduce the price is, for instance, if a new garment is impure or has been washed.]
34.5b. Defects in slaves
If someone buys a slave and finds a defect in him, he can keep him without any compensation, or return him and get his money back, unless the slave has acquired a new corrupting defect while in his possession. If this is the case, the new owner may claim back the amount of the original defect from the price he paid, or he can return the slave and pay the depreciation caused by the new defect.
If he returns a slave because of a defect and has put him to work to earn revenue while he was with him, he keeps the revenue.
[ The same principle applies to buying slaves. The buyer has a choice between keeping the slave and returning him. If he keeps the slave, he receives nothing for the fault. He is allowed to return the slave because there might have been concealment (tadlis) in the sale. This principle applies to faults which can be concealed, not a fault it is impossible to conceal since it is evident, like blindness, or something which is necessarily hidden, like a nut which is found to be empty when opened. In such a case, there is nothing the buyer can say.
If the slave has acquired a new defect while in the possession of the buyer, it must be one which would seriously decrease his value.
If the buyer had the slave to work for him, he keeps the revenue from that work up until the time the deal is nullified, and he is not obliged to hand over any of that, since the Prophet, peace be upon him, said, "Income is with responsibility." One of them said that the meaning of that is the as long as the goods are the responsibility of the buyer, he is entitled to the revenue. When the sale is nullified, then the seller is entitled to the revenue.]
34.6 Selling merchandise on trial, a slave with a guarantee or a slave girl in seclusion
34.6a. Selling on trial (khiyar)
A sale with an option to cancel is permitted when the two parties stipulate a short period in which the buyer can test the goods or in which to seek advice. Immediate payment is not permitted in such a sale.
[ One or both parties can make this stipulation. It is permitted because the Prophet, peace and blessings be upon him, said, "The buyer and seller have the option to withdraw as long as they have not parted." Malik transmitted that in the Muwatta' and stated that it was permitted. They can stipulate a short period which ends when the goods have been tested or until advice sought has been sought. The advice can be about the cheapness or dearness of the price, or about undertaking the purchase or sale. Testing can be about ascertaining the condition of the goods. That varies according to different goods. The option in the case of a riding animal is about three days, For slaves, it is about five days or a week in which to test his condition and work. There is about a month for a house]
34.6c. Slave with indemnification ('uhda)
Nor is immediate payment permitted in the case of a slave with a three day guarantee. (see 34:14)
[ This is selling a slave provided that the seller has responsibility for any faults that come to light in the course of three days after the contract.]
34.6d. A slavegirl in seclusion (muwâda'a)
Nor is there immediate payment in the case of a slavegirl placed in seclusion to ascertain whether she is pregnant. The responsibility and maintenance in that period are that of the seller.
[ Payment is also not made immediately when a slavegirl in seclusion is sold. It is when a valuable slavegirl or one with whom the seller has had intercourse is put in the keeping of a trustworthy man or woman until it is clear whether or not she is pregnant.
Payment in these three cases is suspended when cash is stipulated because sometimes it will become a sale and sometimes it is a loan, and so it is unclear whether the payment is an advance or a price.
The seller is responsible for the goods in these cases, and for maintenance of the slavegirl, as long as it is not evident that the buyer is lying. In such a case, he must take an oath, even he is not suspected.]
34.6e. When slavegirls are secluded
A slave girl is usually only secluded to see whether she is pregnant is when she is purchased to take to bed or when the seller states that he has had intercourse with her, even if she is ugly. The buyer cannot absolve the seller from the responsibility for the pregnancy unless it is clear and obvious. Absolving the seller of responsibility in things about the slave about which the seller has no knowledge is allowed.
[ This seclusion is an obligation for two types of slavegirl to ascertain if the woman is pregnant. One is when the buyer wants her to sleep with, even if the seller does not admit to intercourse with her since the most likely case is that intercourse might have occurred, and so the most likely is given the standing of the definite out of caution in sexual matters. The second case is a slavegirl with whom he had has intercourse in case she might be pregnant.
If the slavegirl is valuable and the buyer has not had intercourse with her, and he says that he is not responsible for any pregnancy, the sale is invalid. If she is clearly pregnant, then he may stipulate that he is not responsible for her pregnancy. He limits it to "valuable" rather than ugly. It is absolutely permitted to stipulate that he is not responsible for the pregnancy of an ugly slavegirl, whether that is clear or not.
One may absolve himself in the case of slaves, but not other things. That is the well-known position. The permissibility of that is limited to two things. One is that the seller does not know about it. If he knows that there is a fault and disclaims responsibility for it, that does not help him. The second is that he has remained a long time with it. If, for instance, he buys a slave and then sells him soon afterwards, stipulating his lack of liability, that is of no use.]
34.6f. A mother may not be separated from her child
A mother and her child are not separated in a sale until the child has grown his second set of teeth.
[ It is not permitted to separate them. This applies to children by lineage and applies whether they the mother and child are Muslims or unbelievers, or one is Muslim and the other an unbeliever since the Prophet, peace be upon him, made a general statement about that: "If someone separates a mother from her child, Allah will separate him from those he loves on the Day of Rising." (at-Tirmidhi, hasan). It is limited to the mother by lineage, not the mother by suckling. It is permitted to separate them if the relationship is only one of suckling. It does not include other relatives besides the mother, like the father. It is permitted to sell them separately.
The prohibition against separation has a point at which it ends. The second teeth refers to when the milk teeth fall out. Then it is permitted to sell them separately because the child is independent from his mother in eating, drinking, and sleeping.]
34.7 Responsibility in an invalid sale
34.7a. Basic rule of responsibility for the goods
In an invalid sale, the seller remains responsible for the goods. But if the buyer has taken possession of them, he is responsible for them from the time he has them in his possession.
[An invalid sale would be like one conducted during the adhan for Jumu'a. The seller remains responsible because it is still his property and ownership has not been transferred to the buyer. If the buyer has taken possession of them, he is responsible because he has not taken them as a trust, but as a sort of quasi-ownership. That is the reason given by 'Abdu'l-Wahhab. Al-Fakhani stated there is some confusion in his reasoning, since it is obvious, as stated before, that there is no transfer in an invalid sale while there must be a transfer according to his argument. It is possible that he means that his taking possession is quasi-ownership is based on his claim. When he takes possession, thinking that he is taking ownership and then causes damage, he is responsible, even if ownership has not been transferred to him in reality. That is why he is liable. That applies from the moment he takes possession of the goods, not from the moment he makes the contract. If the contract had been sound, he would have been responsible from the moment the contract was concluded.]
34.7b. Consequences of buyer responsibility
So if the market price changes or the commodity is altered, then the buyer must pay its price on the day he bought it and does not return it. If, however, it is something sold by measure or weight, he must return its equivalent. Real estate is unaffected by market changes.
[ The market price can rise or fall. If the commodity is altered and it is possible to assess its value, the buyer must pay that amount, whatever it is, even it is more than the original price, not the price on day of the judgement, and then he does not have to return the goods if they still exist. If it is something replaceable, which can be weighed, measured or counted, then he returns the equivalent. If it is impossible to return the like, then he must pay the price. An example of this is fresh dates when their time has passed. Then the price is assessed on the day he is unable to pay.
Real estate is not affected because usually land is bought for private use, and so a change in the price is not investigated, which is not the case with other things.]
34.8 Free loans (salaf)
[i.e. not a loan meant as an investment]
34.8a Illegal transactions in loans
It is not permitted to make a loan in exchange for some benefit [for the lender]. It is not permitted to combine a sale and a loan in a single transaction. The same applies if the loan is combined with hire or rental.
[ That is because the Prophet, may Allah bless him and grant him peace, forbade that. That is like when someone has some poor quality wheat and lends it to someone who takes it from him in exchange for repaying it with good wheat.
An example of the form of combining a sale and a loan is when two goods are sold for two dinars with a month's credit and then one of them is bought for a dinar in cash. So it is as if the seller has taken one item and a dinar in cash and at the end of the term, he takes two dinars: one in exchange for the goods, which is a sale, and the second in exchange for the dinar in cash, which is a loan.
Nor is is permitted to couple a loan with hire or rent as a precondition for making the loan, because hire or rent are a firn of sale and not a special quality in themselves. It is not permitted to make a loan a precondition of marriage, partnership, the qirad loan, musâqa or money changing.
To sum up, no contract entailing compensation can be combined with a loan.]
34.8b. What can be lent
A loan is permitted in everything except slave girls or silver ore.
[ A loan (salaf) means giving something with the intention of pleasing Allah so that the borrower can use it and then return its equivalent. It is permitted, i.e. recommended, in items which will be useful for the borrower and relieve his difficulties. It can also become obligatory or forbidden in certain cases. It is allowed in everything which it is lawful to own, even if it is not valid to sell it, and thus includes the tanned skin of carrion and the meat of sacrifices.
Slavegirls are an exception to this because that would lead to lending sexual favours, although a loan of a slavegirl can be made to a woman or to a child who is of an age where he cannot have intercourse. That is permitted as stated by al-Lakhmi and others.
34.9 Surrendering borrowed or sold property
34.9a. No reductions or increases allowed for a change in the collection date
A reduction in the debt is not permitted in order to hasten its collection nor can it be delayed in exchange for an increase in the amount due.
[This is according to the well-known position. The fuqaha' call this case "putting down and expediting". Its form is that one man owes a debt to another which is due at a certain time, like a hundred dirhams with a month's credit. The one owed the debt tells him, "Give me the fifty now and I will reduce it by fifty for you." This is forbidden because whoever moves up a thing before it is obliged becomes a borrower. So it is as if the payer is lending the one owed the money fifty dirhams in exchange for his responsibility when the 100 are due. So it is a loan in exchange for an increase. If that occurs, what he took from him is returned to him. When the term comes, the lender takes all that he was first due, which is 100.
The same applies to delaying the debt in exchange for an increase, as happened in the Jahiliyya because that is borrowing for an increase. When the time for repayment comes, the person who owes the debt says, "Give me a delay and I will give you more than you are owed."]
34.9b. Not granting an increase in return for earlier possession
Goods are not collected sooner in exchange for increase in them when there is a sale involved.
[ That is part of getting rid of responsibility for the goods. An example of a case in which you are given an increase is when you buying a hundred garments of known description from a man and he tells you, "Take your garments," and you reply, "I will leave them with you. I have no need of them now." He says, "Take them away and I will give you five more." That five is in return for cancelling his responsibility for them.]
34.9c. Returning borrowed goods before they are due
There is no harm in returning a loan early with an increase which is only in the quality.
[ There are two preconditions here. One is that the goods are part of a loan and the second is that the increase is only in the quality. For instance, if the borrowed garment is one of poor quality, he says, "I will give you better than it if I return it early.]
34.9d. Returning a loan with an increase
There is disagreement about when someone repays a trade loan (qard) with an additional amount at the time of repayment when there was no stipulation, promise or custom to do so. Ashhab allowed that, but Ibn al-Qasim disliked it and did not allow it.
[ "At the time of repayment due (lit. meeting of settlement)" is the moment in which it is paid, whether that is before or after the agreed term. A stipulation about this would be, for example, when the lender says, "I will not lend to you unless you give me more than I lent you." A custom refers to the borrower who normally gives more when he repays. The reason for allowing it is that the Prophet, may Allah bless him and grant him peace, said, "The best of people is the one who is the best in payment, and the best of you is the one who is the best repayment," as Ibn 'Umar said. The literal words of the author would mean that Ashhab allowed it absolutely, whether a little or a lot of increase. What Ashhab actually allowed is a small increase like a dinar in a hundred and one ardeb in a 100. It is possible that Ashhab's position applies both to a little and a lot. Ibn al-Qasim disliked doing that with a prohibitive dislike in the well-known position.]
34.9e. Payment before the loan is due
If someone owes dinars or dirhams as the result of a sale or a loan which has a set term, he can pay them before they are due. He can also hand over goods or food from a loan early, but not when it is because of a sale.
[ That is because the term is his right. If he forgoes his right, then the lender must accept it and is compelled to do so. This is the same for a loan or a debt. He cannot be compelled to accept it in the case of in a sale or an advance because they both have a right in that case. A seller is not compelled to accept early payment, even if it is only a day or two.]
34.10. Risky things which may not be sold
34.10a. Not selling fruits or grain before they are ripe
It is not permitted to sell fruits or grain whose ripeness has not appeared, but it is permitted to sell them when the ripeness of some of them has appeared, even if that is on one palm tree among many.
[ This refers to fruit on trees, like dates and grapes while they are still green, or grain which has not developed, like wheat and broad beans. It is not permitted because there is no legal use in the sale before ripeness appears. The appearance of the ripeness of dates is when they turn red or yellow. Its appearance in crops like grapes is when sweetness appears. The appearance in grain is that it is dry. Any contract formed before that is void.
It is permitted to sell fruits when some of them are ripe, even one palm tree as long it is not a bakura, which is a tree which ripens well before the others so that the goodness of the others does not immediately follow it. It is not permitted to sell a garden on the basis of the soundness of the fruit of such a tree, but the fruits of that tree on its own can be sold.]
34.10b. Not selling things which one does not have
It is not permitted to sell fish which are still in rivers or pools, nor can one sell a foetus still in its mother's womb, nor the foetus of what is in the wombs of other animals. It is not permitted to sell the offspring of unborn camels nor to sell the sperm of male camels nor to sell a runaway slave or stray camel.
[ The prohibition about fish is based on what Ahmad transmitted about the Prophet, may Allah bless him and grant him peace, forbidding buying fish still in water, i.e. due to uncertainty, and the uncertainty in it has two aspects. One is the lack of the ability to hand the fish over, and the fish might be little or large.
It is also not permitted to sell a foetus, human or animal, because of the uncertainty since one does not know whether it will be born alive or dead, fully formed or not fully formed, male or female.
It is not permitted to sell the offspring of unborn camels, and that is because the Prophet, may Allah bless him and grant him peace, forbade such a sale, which is called habal al-habala. Ibn Wahb explained it as the offspring of a camel's offspring. It cannot be concealed that this entails great uncertainty. If it is forbidden to sell what is in the womb, how can one sell the future offspring of what is in the womb!
It is not permitted to sell the sperm of camels since it is confirmed that the Prophet, may Allah bless him and grant him peace, forbade selling the stud uses of a camel. Ibn Naji said, "If that is limited to a number of times or a period of time, then it is permitted. Ibn Habib related that it is disliked because of its prohibition.
A runaway slave is not to be sold while he is on the run because of the forbidden uncertainty. If he is resident or it is clear that he is no longer on the run, then it is permitted, i.e. when a time is stipulated as, for example, when he says, "The end of his being on the run is four days." Or it can be limited by place, as he says, "His being on the run will end at Alexandria." The same ruling applies to stray camels because of the uncertainly about the ability to get hold of them.]
34.11 Dogs
34.11a It is not permitted to sell dogs
Selling dogs is forbidden. There is disagreement about whether one can sell those dogs which are permitted to be kept.
[ The prohibition derives from what is reported in Muslim where the Prophet, may Allah bless him and grant him peace, forbade the proceeds from the sale of dogs, money earned through prostitution and the earnings of a soothsayer. The disagreement is about dogs which are used as guard dogs and for hunting. There are two well-positions about whether that is permitted or prohibited.]
34.11b. Liability for killing dogs
If someone kills such a dog, he is liable for its price.
[If someone kills a dog it is permitted to keep, he must pay the price according to the position that it is permitted to sell it. As for dogs not permitted to be kept, there is no price for such a dog.]
34.12 Muzâbana exchange
[A sale of something which entails dealing with something whose weight, measure or number is unknown.]
34.12a. It is not permitted to sell meat for a live animal
It is not permitted to sell meat for a live animal of the same species.
[ That is because the Prophet, may Allah bless him and grant him peace, forbade that and because it is selling something known for something unknown, which is one meaning of muzâbana. Malik considers the prohibition to be specific to meat in exchange for a live animal of the same type, as the shaykh indicates here. The species in this case means the linguistic category for the type and the class, like selling beef, for instance, for sheep. In the Mukhtasar, the prohibition is limited to meat which has not been cooked. Otherwise it is permitted, as it is permitted to sell it for other than its species, like selling mutton for birds.]
34.12b. Combing two sales in the same contract not permitted
It is not permitted to have two sales in the same contract. That is when someone can buys goods for either five in cash or ten on credit, and the sale becomes binding after one of the two prices is paid.
[ It is confirmed the that Prophet, may Allah bless him and grant him peace, forbade that. There are two forms of that. One is when someone buys the same goods for two prices. The shaykh indicated that here, which is either paying five in cash or ten on credit and the sale becomes binding once one price is paid. He used the price to designate the sale as the price is one of the essential elements of the sale. The second form is to sell two different commodities for one price, like a garment and a sheep, as a requirement of the sale. The precondition for its being forbidden is because that becomes binding for one or both parties and because of the uncertainty entailed since the seller does not know the price he was paid nor the seller what he paid. If it is not binding, then it is permitted.]
34.12c. Not selling dried fruits for fresh ones
It is not permitted to sell dried dates for fresh ones, nor raisins for grapes, whether for disparate amounts or equal amounts, nor any type of fresh fruit for the dried fruit of the same type. This is muzâbana which is forbidden.
[ This cannot be done, either in similar or disparate amounts, since it is confirmed that the Prophet, may Allah bless him and grant him peace, was asked about selling dried dates for fresh ones and he, may Allah bless him and grant him peace, asked, "Do dried dates reduce in size when they are dried?" "Yes," they replied. He said, "Then no." Malik said, "They are not sold." Abu Hanifa said that there is no harm in that.
It is also not permitted to sell raisins for grapes in disparate or equal amounts because there can be no equivalence in them, because when dried, the fresh may be more than the dried, or less or the same. This is uncertainty and lack of knowledge of actual equivalence, and is tantamount to actual disparity. Disparity is not permitted because they are the same category. This applies to any sort of fresh fruit in exchange for dried. This would include grains and any fruits which differ when they fresh from how they are when dried. He excludes different types because disparity is permitted when the two are different types.
Muzâbana is forbidden, which here is selling something known for something unknown of the same type. We consider muzâbana to be confined to things susceptible to usury, even if the hadith which explains it uses something which is susceptible to usury.]
34.12d. Not selling undetermined quantity for a determined quantity
One does not sell an undetermined amount for a measured amount of the same commodity, nor an undetermined amount for an undetermined amount of the same category unless the difference between the two is clear and it is something in which disparity in the same category is permitted.
[ This is like selling a heap of wheat whose measure is unknown for a heap of wheat whose measure is unknown since it is muzâbana when it is the same category. When the two categories are different, that is permitted provided it is obvious, i.e. the two categories are clearly different, be it selling an unknown for a known or vice versa, whether or not the difference is evident. When it is clear that there is difference between the measured quantity and the unmeasured, or the unmeasured and the unmeasured, it is permitted to sell them if they are a category in which disparity is permitted. This cannot be done with something which is storable and a stable food, nor with gold or silver.]
34.13 Selling Absent Goods
34.13a. Absent goods can be sold based on their description
There is nothing wrong with selling an absent article based on its description. Pre-payment is not to be stipulated unless its location is close or it is something safe from change, like a house, land or a tree. Pre-payment can be made for these.
[ This is according to Malik and his people, with certain preconditions. One is that the item is described. Ibn Naji said that the apparent meaning of his words is that if it is sold without a description and it not been seen, then it is not allowed. If it is, he has an option to cancel when he sees it. That is what is stated in the chapter on uncertainty in the Mudawwana.
The second precondition is that someone other than the seller describes it because the seller is not reliable in his description since he intends to augment its description so that the goods will sell. The precondition for its being described by other than the seller is when there is prepayment, even voluntarily. Otherwise, the description of the seller is accepted as probable.
The third precondition is that the goods are not very far away. This is a precondition if the sale is definite. If there is an option to cancel, it is permitted because there is no harm to the buyer.
The fourth is that pre-payment is not stipulated. It is forbidden because it is not possible to hand over the goods so that he pays the price but does not receive the goods and thus it becomes a loan.]
34.13b. Exceptions to forbidding prepayment
[ He makes two exceptions to forbidding obliging pre-payment. One is when the absent goods are near to the place, whether it is animals, commodities or immovable property, like a day or two. The second exception is when the sale concerns one of the categories mentioned. It is something which is safe from sudden change, unlike the situation with animals. It is not permitted to make a precondition for prepayment of categories subject to change when they are located far away.]
34.14 Slaves sold with an indemnification
34.14a. Indemnification ('uhda) is permitted in slaves
A guarantee is permitted in selling a slave when that is stipulated or it is the local custom. In the three day guarantee the seller is completely responsible for defects in that slave, and in a year's guarantee, he is only responsible for insanity or either type of leprosy.
[ An 'uhda is a contract in which responsibility for the goods remains that of the seller after the contract for a certain period. It is permitted in the case of slaves but not animals because a slave has the ability to conceal his defects, which is not the case with other commodities, and he may be concealing a defect which the buyer will dislike, and its concealment may be due to harm or dislike in the seller. The period of indemnification is set when it is stipulated in the contract or when the ruler obliges people to do that. If none of this exists, then it is not set.
For three days the seller is responsible for everything, even death, drowning, burning or suicide. If the buyer finds an illness within the three days, he can return the slave without evidence. If that occurs after three days, he must produce evidence that the slave had that illness when he purchased him. The buyer is responsible for the feeding and clothing of the slave in this period and any revenue he earns in that period belongs to the buyer.
In the year's guarantee, the seller is only liable for three things. One is insanity, which is by jinn possession or nature, not due to a blow or rapture. He is not returned since it is possible to cure that by treatment which differs from the first two cases. The other two things are the two forms of leprosy (whitening and that which involves mutilation). The contract is specific to these diseases. That is because their causes can exist while they only manifest themselves at certain times of the year, as is the custom of Allah in the effect of that cause in that season. So the four seasons must be passed through, which is a full year, to show that he is clear of these defects.]
34.15 Sale with advance payment (salam)
34.15a Advance payment is permitted
There is nothing wrong in advance payment (salam) for goods, slaves, animals, food and condiments, provided the goods have a known description and there is a set term of delivery. The price is to be paid immediately, or with a short delay of something like two or three days, if that is stipulated in the contract.
[ This is also called salaf, and it is a term used to designate a type of sale in which what is purchased is not collected immediately. Its reality is that the price is advanced and delivery of the goods purchased delayed. The Book, Sunna and consensus indicate that it is allowed. The evidence in the Book is the words of Allah Almighty, "Allah has permitted trade." (2:274) As for the Sunna, it is reported in the two Sahih Collections that the Messenger of Allah, may Allah bless him and grant him peace, said, 'When anyone pays in advance for something, it must be for a specified measure and specified weight for a specified term." The Community agree that it is permitted.
It is allowed in the commodities he mentioned provided the goods for which the advance is paid have a known category, amount and quality as he indicated. If the purchase is food, then its type must be specified, either wheat, barley, or millet, or if it is fruit, it is specified, whether raisins or dates. The amount is specified by whatever is the custom in measure, weight, number or length or whatever. The description must be specific. If it is food, he mentions what describes it. If is an animal, then the species is mentioned, its colour, and whether it is male or female.
Two things are considered about the term. It is must be known and it is a length of time in which market prices can change. Its minimum is half a month. It is not valid to give an advance for immediately delivery according to what is common in the school.]
34.15b. Preconditions of the payment
[ He indicates preconditions of the payment, and that he must pay the entire price because when he pays some and delays some, it is invalid because it is a debt for a debt. There can be a short delay of a day or two if it is not stipulated that he pay cash when the contract is made. It is permitted for the advance to be paid after two or three days. That is still considered immediate payment, and he mentions this specifically. His words would mean that if it is longer than that, such a precondition is not allowed.]
34.15c. Delivery of the goods paid for in advance
We prefer for the delivery of the goods paid for by advance to be fifteen days, or for it to be collected from another town, even if that is two or three days distant. According to more than one scholar, it is permitted to pay three days in advance and collect it in the same town in which the advance was paid. Others dislike that.
[ That is because the market generally changes in such a period. It is clear that it is about that. That is like when he says, "We prefer for the length of the advance to be up to fifteen days." The school of Malik is the term of the advance is that in which something like it will change its price in markets without that being specifically defined. The subject of the disagreement is when the price of the advance is paid when the goods for which the advance is paid are in the same town. If each of them are in different towns, the term mentioned is not a precondition, as he indicated.
If the goods are in another town other than where the advance is paid, the distance between the two is the term for the advance, because usually there is a difference of prices in different places. It does not matter if it is only half a day.
Some scholars, including Malik, allow the advance in the same town, while others, like Ibn al-Qasim, dislike it.]
34.15d. An advance cannot be with the same type of goods
It is not permitted for the payment to consist of the same type of goods as that for which the advance payment is made. No advance is made of the same type or similar type of goods unless he lends him something to be repaid with something of the same quality and quantity, and the borrower enjoys the benefit.
[ This is when the goods for which the advance is made are more than the payment, like one qintar of iron for two qintars because the object of an advance is to bring about a benefit. The same holds when it is less, like two garments for one garment of the same type because it is a liability in exchange for a wage. When the payment for the advance is similar to the goods in description and amount, it is permitted, as he states here, like donkeys for asses, or linen slaves for cotton slave because their uses are close.
An exception to the prohibition against advancing a thing of the same type is a loan which is repaid with its like. The borrower enjoys the use, but it is not permitted for the lender to be the one who benefits.]
34.16. Exchange of debts
34.16a. It is not permitted to sell a debt for a debt.
It is not permitted to sell a debt for a debt.
[ It is related that the Prophet, may Allah bless him and grant him peace, forbade selling an outstanding debt for an outstanding debt. The people of language say that that means a delayed payment for a delayed payment, meaning a debt in exchange for a debt. According to the fuqaha', it denotes three things: selling a debt for a debt, contracting a debt in exchange for a debt, and abrogating one debt by another debt. So the expression, "selling a debt for a debt" has two applications which includes three forms.]
34.16b. A forbidden aspect
One form of that is to stipulate delay of payment for the salam sale until the goods are delivered, or to delay payment more than three days after the contract.
[ Payment of the salam cannot be set for more than three days after the contract. It is part of "a debt for a debt" because it prolongs the responsibilities of both.]
34.16c. Not cancelling one debt by another debt
Nor is it permitted to cancel one debt by another debt. That is when someone owes you something and you cancel it by allowing him to pay you something else at a latter date.
[ An example of this is that he owes you ten dinars on a year's credit. Then cancel it for ten garments, for instance. If the cancellation is at the term or shorter than it, there are two positions. One is that is permitted, which appears to be most logical. It is also said that it is forbidden, and that is the better known position.]
34.17. Sale of goods one does not have
It is not permitted to sell something which you do not have if it is stipulated that you must deliver it immediately.
[ If it is clear that if he wants immediate delivery. This is when he sells something for which he is responsible and does not have and so he must go to the market and buy it and then hand it over to the buyer. This entails risk and uncertainty, because he may or may not find it, and if he does find it, he will buy it for more than the price for which he sold and must make up the price himself, and is forbidden foolishness, or he buys it for less and consumes the rest falsely, which is not permitted.]
34.18 Reversal of sale on time
When you sell some goods to be paid for later, you may not buy them back by paying in cash less than you sold it for or by taking a shorter term to pay for it than the term given to the original buyer, nor can you pay more for it or take a longer term to pay for it than the original term. It is permitted to buy it at the original date, and that is fair exchange (muqassa).
[ The sale in the first example is when he sells a garment for ten dirhams for a month and then buys it for five in cash. The example of the second is that he sells it to him for a 100 for a month and then buys it for fifty for 15 days. Both cases are forbidden because they entail a loan in exchange for an increase because he pays a little in order to take more than it.
Another case is when you sell goods for a price on credit. You cannot then buy them back for more than the price, as when a man sells goods for a 100 for a month and then buys them for 150 for two months because that entails a debt for a debt. If you sell goods for a price on credit and then buy them for a price on credit for the same term, that is permitted whether the price is more or less or the same, because there is no reason to be on guard. Fair exchange is when you see goods for a 100 for a month and then buy it for 100 on credit. This is responsibility for 100. So at the end there is a 100 for 100.]
32.19 Buying in undetermined amounts (juzâf)
32.19a It is permitted to buy in unmeasured amounts
There is nothing wrong in buying undetermined amounts of things which can be measured or weighed, except for dinars and dirhams which are minted. It is, however, permitted in the case of pieces of gold and silver.
[ "Undetermined" means not weighed, measured or counted. "Nothing wrong" means it is permitted. In the Sahih we read that the Companions, may Allah be pleased with all them, sold fruits in undetermined amounts. It is, however, forbidden to sell minted dinars and dirhams in undetermined amounts because that is part of what contains risk and gambling. It is permitted with pieces of gold and silver unless they are used for currency. When they are used as currency, then it is not permitted to do that.]
32.19b. Things which can be easily counted are not sold uncounted
It is not permitted to buy slaves and garments in undetermined amounts, nor other things which can be counted without difficuty.
[ This would also be like two gardens. It is easy to count small numbers.]
32.20. Right to the accessories of items sold
32.20a. Pollinated palms and crops
If someone sells date palms after they have been pollinated, the fruit belongs to the seller unless the buyer stipulates that is part of the sale. It is the same with other types of fruit. Pollinating (ibâr) is using the male blossoms to pollinate the female, but in respect of crops, it means when they spout from the soil.
[ This is when all or most trees have been pollinated. The fruit still belongs to the seller unless it is part of the contract. This is a general principle which applies to all sorts of fruit, like grapes and olives. Pollination of palms means to put pollen on the fruit from the male palm tree. In other than palms, like peaches and figs, it is when the fruits begin to grow so that they can be seen. The well-known position about crops is that it is when they start to emerge. So if someone buys sowed land in which has not yet appeared, he obtains the seeds in it.]
32.20b. A slave's possessions
If someone sells a slave who owns some property, that property belongs to the seller, unless the buyer stipulates otherwise.
[ He stipulates it for the slave, not for himself. If he stipulates it for himself, that it is forbidden if the price was gold or silver, and the property is gold or silver.]
32.21. Examining items
32.21a Buying items unseen but described
There is nothing wrong in buying what is bags with a known description on rosters.
[ This is permitted. Even though the basis is forbidden, it is permitted because of the difficulty and hardship entailed for the seller in untying the bags which may sully what is in itself and be a great burden if the buyer is not satisfied. So the description takes the place of actual seeing. What is meant by rosters is a written description. If he finds the contents to be what is on the roster, then the sale is binding and the buyer has no option to cancel. If he finds that the contents are different, he has an option to make the sale binding or cancel it.]
32.33b. What one cannot buy without seeing it
It is not permitted, however, to buy cloth which is not unfolded nor described nor to buy if it is a dark night when the buyer and seller cannot see it or know what is in it. The same holds for buying an animal on a dark night.
[ Literally it would mean that if it is described, it is permitted. The well-known position is that it is not permitted because there is no hardship involved in bringing it out and unfolding it. His words might also give rise to the impression that if it is a moonlit night, it permitted. According to the Mudawwana it is absolutely not permitted, whether it is a dark or moonlit night.
Ibn al-Qasim also says that about selling flock animals. Ashhab makes a distinction about that whose meat is eaten, which can be sold since it possible to test it at night by touching it with the hand to clarify the aim of it being fat or lean.]
34.22 Bidding
34.22a. No bidding when a sale is about to be concluded
No one should bid against his brother's bid when the two parties are satisfied and near to closing a deal, but he can do so at the beginning of the bidding.
A sale is finalised verbally, even if the two parties have not physically separated.
[ It is forbidden when the buyer and seller are close to agreement and only the finalisation remains. At-Tata'i said that bidding in sales to seeking to increase the price.
We believe that sales are concluded by a verbal agreement, or what indicates it, like a gesture or handing over, even if they have not separated. The hadith says that the Prophet, may Allah bless him and grant him peace, said, "The buyer and seller have the option as long as they have not separated." Imam Malik takes the separation to be by words.]
Then he begins to discuss transactions which resemble sales.
34.23. Hiring services by time, piece-work and renting
34.23a. Hiring services is permitted
Hiring services (ijâra) is permitted when the two parties set the length of time and the payment.
[ In a hadith, we read that the Prophet, may Allah bless him and grant him peace, said, "I will be the antagonist of three people on the Day of Rising: a man who makes a covenant in My name and then betrays it, a man who sells a free man and then consumes the money he gets for him, and a man who hires an employee and gets full work from him and then does not pay him his wages." This hadith is in the two Sahih Collections. The apparent meaning of the words is that there must be a term set for every employment, but that is not the case when the types of employment do not need a term. It is work whose end is when it is finished, like sewing and weaving. Naming the payment is necessary, as Ibn Naji said. When it is not named, that is not allowed unless it is something common which does not vary, and then it is permitted.
34.23b. Piece-work jobs
No term is fixed in a contract to recover a runaway slave or a lost camel, or to dig a well, to sell a garment or similar things. He receives nothing until the work is complete.
[ It is not set because that would increase the uncertainty about wage since the term pay pass before the work is complete and so his work will be for nothing, or he make take what he is not entitled to if the work is complete before the end of the term. A piece-work job can consist of many things, like the cases mentioned here.
Something similar is stated in the Mukhtasar. Bahram said, "It may be something in which the contractor only obtains a useful benefit when the work is complete. How will he obtain that benefit if the work is not complete? He must receive an amount which he benefits by. An example of that if when he looks for a runaway slave in one area and does not find him there, there is some benefit for the contractor because he knows that he is not that area." It is understood from the words of the Shaykh and the Mukhtasar that when the work is not complete, he gets nothing, and that is the case. That is the case since the Prophet said, "There is a camel load for the one who brings it."]
34.23c. Someone hired to sell something by the end of a term
If someone is hired to sell something by the end of a term and he still has not sold it at the end of the time, he is entitled to his full wage. If he sells it after half the term, he only receives half the wage.
[ This is when he is hired to sell a specific item. The reason for this is that when the hire is connected to uses, each of part of it is in return for a part of the uses. If it is said that it was already stated that no term can be put on a job whereas here he mentions the end of the term and so this is a contradiction, the answer is that it is not a contradiction because before he was speaking about piece-work and here it is hire, which is not allowed without a term as Ibn 'Umar stated.]
34.23d. Renting (kirâ')
Renting is like selling as far what is lawful or unlawful is concerned. If someone rents a particular riding animal to go to a certain place and the animal dies, the rest of the hire is cancelled. It is the same when an employee dies, or when a house is rented but collapses before the end of the term.
[ Ibn 'Umar said that renting (kirâ') is used for that which is without intelligence and hiring (ijâra) is for that with intelligence. It resembles sales in respect of having a known term and known rent, and in being forbidden without a known term and the like. The difference between hire and rent begins with his description of renting a riding animal. It indicates that renting is used for selling the use of an animal which has no understanding. He calls an employee ajîr, because he has intelligence.
Renting the use of an animal is like when he says, "Rent me this animal," which he points at it, "so that I can use it for travel to a certain place." If the animal then dies, or is confiscated or claimed, the rent is cancelled and he pays for the distance he has travelled, without consideration for the first rent because it might be cheap or expensive.
If an employee is hired for a particular job for a known period to work in a house or tend sheep, the same ruling as that of the animal applies. The rest of the hire is cancelled. The same applies when all or part of a house collapses or there is great harm in it or its burns or is claimed before the end of the rent, whether the rent is monthly or yearly. It is cancelled and he pays for the time he lived there.]
34.23e. Teachers and doctors
There is nothing wrong in a teacher teaching the Qur'an being paid when the student has mastered it and for a doctor to be to be employed provides he cures the patient.
[ It is permitted to employ someone to teach the Qur'an to children until they master it, i.e. memorise it, all or part. There is also no harm in hiring a doctor who is paid when he cures the patient.]
34.23e. The death of a renter does not end the rental
The rental of an animal or house does not end with the death of the renter nor does not the hire of a shepherd end by the death of the sheep. The sheep should be replaced with a similar flock.
[ That is because the item rented remains and the heirs can rent it for its like or less. In the case a shepherd, if he is not given a new flock, he is paid the full wage.]
34.23f. When a rented animal dies
If someone rents out an animal with a guarantee and then the animal dies, he should provide another. If the rider dies, the rental is not cancelled and his heirs must hire another rider.
[ An example is when he says, "Rent me an animal I can use to get to such-and-such a place." If the animal dies, the one who rented it to him must replace it because the uses are his responsibility and not connected to this particular animal. If the rider dies, i.e when someone rents an animal and pays for it and then dies, the rent is not cancelled. His heirs rent the animal for someone who is like him in ability and condition.]
34.23g. Destruction of implements
If someone rents a household implement or something else, he is not liable for it if it is destroyed or lost while in his possession. His word is believed about that until it can be proven that he is lying.
["Implement" (mâ'ûn) is a general term for utensils in the house, like pots, platters, axes, and sieves. "Something else" would be like a garment or riding animal. If he says it is destroyed, the one who rented is believed unless there is evidence to the contrary and then he is liable. This is like when he says, "It was destroyed at the beginning of the month," and then it is seen with him after that. It is understood by "in his possession" that if he removes it from his possession and it was destroyed by someone else, he is liable since he rented it to someone not trustworthy or someone heavier or more injurious than him.]
34.23h. Artisans' responsibility
Artisans are responsible for things they lose, whether they are working for a wage or not.
[ Artisans are those who set themselves up to work for their livelihood, like tailors. They are responsible for the value of things they lose, assessed on the day they took possession of those things, and receive no wage for the work they did on them, i.e. because they are responsible for the value of the item before any work done on it. It states in the Mawwaziyya, "The owner cannot say, 'I will pay the wage and take its value after the work.'" Ibn Rushd said, "Unless the artisan confirms that he lost it after the work was done."]
34.23i. Bath house owners
The owner of a public bath house is not liable [for belongings lost by clients].
[ Ibn Naji says that his words mean that he is renting out and is not a guard for the clothing. Ibn ÔUmar stated the opposite of this. He said that the owner of a bath house is a guard of the belongings, whether he guards them for a fee or without a fee. This is where they are stolen or destroyed by the command of Allah Almighty. As for when he says, "A man came and asked for them and I thought that he was their owner and so I gave them to him," then he is liable. The same applies when he says, "I saw the one who took them and I thought that he was their owner." Ibn al-Musayyab said, "The owner of the bath house is responsible, and that is what Abu Hanifa said.]
34.23j. Shipowners
The owner of a ship is not liable [for lost cargo or damage]. A shipowner is not paid his hire until he delivers his cargo.
[ He is not liable for the ship floundering because of wind or waves. He does not receive his hire until he delivers the cargo because the fee for the ship is one that of hire. If the aim is not achieved, the fare is not deserved. It is said that he is paid a fare according to how far the ship travelled. That seems likely because it is more appropriate to connect the rent of the ship to hire than to connect it to piece-work because the end is known and the wage is known and so he is paid according to the distance travelled.]
34.24. Partnership of labour and capital
34.24a. Partnership of labour
There is nothing wrong in a having partnership in physical labour when the partners work in the same place with the same work, or do work that is similar.
[ It is the permission of each of the two partners to work together. The evidence for that in the Sahih from that Zuhra ibn Ma'bad. He used to go out to the market with his grandfather to buy food. Ibn ÔUmar and Ibn az-Zubayr would meet him and say to him, "Be our partner. The Prophet, may Allah bless him and grant him peace, prayed for you to have blessing," so he would be their partner. Often he would get a camel's load as profit and sent it home.
They work in the same place with the same work. This is the position of the Mudawwana. Ibn 'Umar explains it as being well-known. The 'Utbiyya allows it to be in several places when the work they do is the same. The author of the Mukhtasar says that it well-known. The same sort of work is like two tailors. "Close" means that the work of one of them depends on the work of the other, as when one prepares the spinning to be woven and the other does the weaving. When the work is different and not similar, like a tailor and blacksmith, partnership is not permitted because of the uncertainty since the work of this one rather than that one may be sold and he will take what he is not entitled to from his companion.
34.24b. Partnership of capital
A partnership in pooled capital is permitted provided the profit is shared between according to the size of the investment of each of them. The work of each is also in proportion to percentage of the profit stipulated for him. It is not permitted to share the profit equally if their investments differ.
[ Capital partnership is in dinars and dirhams invested by both sides by consensus, and by food with the same description and category according to Ibn al-Qasim while Malik forbade that, i.e, forbade that with the same description, category and amount, let alone different ones.
When it is said that it is permitted, the profit shared between them and the work is in proportion to the size of the investment. For instance, if one of them pays 100 and the other 200, the profit and loss is divided into thirds between them.]
34.25 Investment loans (qard)
34.25a. Investment loans (qirad) are made with money
An investment loan (qirad) is permitted with dirhams and dinars, and it is also allowed with unminted gold and silver.
[ There are certains preconditions for a qirad. One is that it be in gold or silver, whether that is done by number or weight. ]
34.25b. Investment loans are not made in merchandise
A qirad made in goods is not permitted. In such a case, the borrower is like an employee who sells them. If he then trades with the price, this then becomes an investment loan.
[ An investment loan cannot be in any weighed or measured things because the basic root of the qirad is uncertainty because the wage is unknown since the agent does not know whether or not he will have a profit. Its amount is according to the profit. The investor does not know whether there is a profit or not and whether or not he will get his capital back. That is uncertainty because of these aspects. However the Lawgiver allowed it out of necessity since the people needed to transact trade with it. That amount of it which the Lawgiver permitted is what is permitted. It consists of minted cash or what has the same ruling in the form of pieces of gold and silver.
It this actually happens, then the agent becomes an employee. When he trades with the price, that is a qirad. It says in the Mukhtasar that his wage is the like of what he would get for selling the goods. As for his work in the qirad after that, he has the profit from such a qirad, if there is a profit. Otherwise he has nothing.
Then he explained the matters over which the agent has control rather than the investor.]
34.25c. Expenses
The agent has a right to clothing and food if he travels with a considerable amount of capital. He is only entitled to clothing for a long trip.
[ This is mandatory. What is meant are his expenses for a return journey, with two conditions. One is the journey, and it must be one by which he intends to make the investment grow. If he travels with it to visit his family or to go on hajj, he is not entitled to any expenses. The other is that the capital is considerable. The journey can be short or long in respect of food. There is no clothing entitlement for a short journey when the money is a lot and not just a little. A short journey is the distance of up to ten days and the definition of a lot of property is fifty dinars or more.]
34.25d. Division of profits
The profit is not divided until the capital is in cash.
[ It means that it converted to gold or silver. A example of that is when he sells some goods and still has some which is the capital. If he is told to then divide that which is cash, that is not permitted because the remaining goods may be destroyed.]
34.26 Leasing an orchard or plantation (musâqa)
34.26a. A musâqa is permitted
Leasing an orchard or plantation of trees is permitted, provided that the two parties agree on the shares.
[ It means that someone hands over his grapevines or date palms, for instance, to someone who attends to whatever they require of irrigation and work on the basis that the crop which Allah grants is divided in half between them or for a known portion of the fruit, like a third or a fourth. Its ruling is that it is permitted according to what is in the two Sahih Collections which states that the Messenger of Allah, may Allah bless him and grant him peace, employed the people of Khaybar for half of what it produced of fruits or crops. It is an exception to arable sharecropping, which is renting out land for what is produces, selling fruits and hiring them before they are good and before they exist, which is part of hire for something unknown.
It has certain preconditions. There must be two parties, and they must be capable of hire. The expression sâqâ [whose root is irrigation] is used, and it is not contracted for mutual trade and the like. It made on immovable property [i.e. the trees] and it would appear that it is not permitted in anything else. This is not the case. It is valid for in the case of crops like sugar cane, onions and cucumbers with certain conditions. One is that the owner of the crops is unable to attend to them. The second is that he fears the crop will die due to lack of irrigation. The third is that it has appeared from the ground. The fourth is that its ripeness has not yet appeared because then it would be permitted to sell it and so there is no need for musaqa. Part it is that he does it for known portion, whether a lot like two-thirds, or a little, like a fourth.
They must agree on the division of the shares. If he does it for certain number of sa's or wasqs, that is not permitted.]
34.26b. The labour is done by the lessee
All the work is done by the lessee. No other work can be stipulated for him other than that entailed by the musâqa (irrigation) and nor is he required to start any work in the orchard unless it is of no consequence, like mending a fence and repairing a reservoir, without that involving actually initiating the work.
[ The work consists of tending to what the fruits require in the form of irrigation, pollination, fertilisation, pruning, and repairing tools in the form of buckets, spades, and so forth. The owner cannot stipulate other work, like buying a garment for him and similar jobs which have nothing to do with the fruit. He cannot stipulate initiating any new work unless it is inconsequential, like mending an existing fence of the garden or mending the reservoir. It is not permitted to stipulate that he build it from scratch because that will remain after the fruit.]
34.26c. Tasks which can be stipulated
Pollination of the trees is done by the lessee as well as cleaning the places where the water settles among the trees, mending the place where the water falls from the bucket, cleaning the water source and similar tasks.
[ Pollination is buying what is used for fertilisation and attaching it to the trees. That is the school. Cleaning the water source is to remove dirt or leaves from it. Similar tasks include pruning and drying.]
34.26d. Work animals may not be removed
The musâqa does not permit the expulsion of animals in the orchard. If some of them die, then the owner must replace them. The lessee must maintain the animals and the employees.
[ The Mudawwana states that the owner of the garden cannot grant the musâqa contract and then stipulate the removal of any of the slaves or animals from the garden. Bahram said, "This is a prohibition, not simple dislike." If animals in the garden die, the owner must replace them, even if the worker has not stipulated that because the contract is based on work on that which is the responsibility of the owner of the garden in respect to those animals on which the contract occurred when they are in the garden. If the owner stipulates that the agent has to replace them, that is not allowed. The agent must fodder the animals and clothe and feed the employees according to the well-known position because he owes the work and all the burdens connected to it.]
34.26e. Cultivating unplanted parts of the orchard
The lessee should cultivate the unplanted area if it is slight, but there is no harm in leaving that up to the lessee, and this is the most lawful course. If there is a lot of unplanted land, it is not permitted to include it in the musaqa contract of the orchard. It can only be included if is it is a third or less of the orchard.
[ Unplanted land is land which is free of trees. A third or less is a slight amount. The owner can cancel that. If it is a lot, he is not part of the musaqa of the palm trees.
So a small area of unplanted land can be part of the musaqa with the above preconditions. If it is not mentioned or stipulated in the contract, it is the responsibility of the agent. The contract is void if the owner stipulates that it is his if the agent irrigates it, as the contract is void is it includes a lot of unplanted land or it is stipulated that it belongs to the agent [in the case of palm trees]. It belongs to the owner. As far as a lot or a little is concerned, it is in respect of all the fruits, not in respect to the share of the agent alone.]
34.27. A farming partnership
34.27a. Sharecropping is permitted
It is permitted to have a sharecropping partnership if both parties share in the cultivation and the profit is shared between them, whether one owns the land and the other does the work, or the work and rent are shared between them, or they both own the land.
[ Some call it muzâra'a. The shaykh mentioned eight cases in this topic: four are permitted, three are mentioned in order and the fourth delayed, and four are forbidden, one of which is understood and three are stated.
As for the three which are permitted, he mentioned the first here, which is when one owns the land and the other does the work. That is when there is equality with the rent of the land in value, or close to it, as when the value of the land is 19 and the work 20 or the reverse. If they are far apart, it is not permitted.
The second is when the work and rent are shared between them.
The third is when they both own the land.
Then he moves to the forbidden three cases which are mentioned:]
34.27b. Forbidden forms of sharecropping
If one provides the seeds and the other owns the land, with the profit to be shared between them, that is not permitted, whether one or both do the work.
[ One case is when one of them provides the seed and the other the land and the work. Another case is when one of them provides the seed and the work and the other the land. The third case is when one provides the land and the seed and they both do the work.
Then he indicates the fourth of the permitted cases and says:]
34.27c. Another permitted form
If they both rent the land and the seed comes from one and the work from the other, it is permitted if the values of the two undertakings are close.
[ Or it is jointly owned, or it belongs to one and the other pays him the rent for half. This is when the cost of the seeds and the work are close. If they are not close then it is not permitted. That is the fourth forbidden case.]
34.27d. Rental of land with uncertain irrigation
No payment is made on renting land whose irrigation is uncertain until it is watered.
[ This is like land watered by rain and land with a small spring. If irrigation is secure, like land watered by a river near a large sea, and like land watered by rain in the east, then when the contract of rental is made, it can be paid, even if it is for a long time, like 30 years.]
34.28 Liability for damage to crops sold and not yet claimed
34.28a. The effect of damage to crops
If anyone buys fruit still on the trees, and then a third or more of it is destroyed by cold, locusts, frost or something else, the cost of that is deducted from the price the buyer pays. If it is less than a third, then the buyer bears the loss.
[ He buys the fruit after it appears but before it is fully ripe. Other things which can damage the crop are like wind, snow, armies and thieves. It is related by Ibn Wahb that the Prophet, may Allah bless him and grant him peace, said, "When a man buys fruits and then blight befalls it and a third of the fruit is lost, the liability is obliged for the owner." This is when the cause is other than lack of water. When it is due to lack of water, then there is no limit. It is reduced, be it a little or a lot, whether they are watered from spring or by rain because irrigation is the responsibility of the seller, and is part of the discharge of his responsibility.]
34.28b. When there is no reduction
There is no crop damage in a crop or what is bought after the fruit has been dried.
[ That is because it is only sold after it is dry. The delay until after it has been dried is neglect on the part of the buyer.]
34.28c. Damage to vegetables
There is a reduction in crop damage to vegetables, even if it is little. It is also said that there is only a reduction if a third is damaged.
[ This is like onions and chard because the damage is usually due to lack of water.]
34.29 Gift of fruit which can be dried ('ariyya)
34.29a. The 'ariyya
If someone gives a man an 'ariyya (a grant) of the fruit of palm trees from his garden, there is no harm in him buying them when they are ripe in exchange for dry dates, based on estimation of their measure.
[This is when he gives someone – whether a man, woman or child – the fruits as an 'ariyya, which is granting him the crop which is still on those trees. It is not valid if it is a simple gift. When they are ripe, the giver can buy then by estimating their measure. The form of that is that it is said, "How much is on this palm tree of wasqs?" It is said, "It is five or more." Then it is asked, "How much will that be reduced when they are dried?" and the reply is a wasq or more. If something like five wasqs or less remain after that, it is allowed, and if it is than that, it is not permitted in exchange for dried dates of the same type.
34.29b. When they are cut
He given that when they are cut, if it is five wasqs or less. It is not permitted to buy more than five wasqs except with money or merchandise.
[ This is not meant that it is not a precondition that it is immediate. They either agree to full payment when they are cut or are silent on it. A precondition of immediate payment might ential harm. As for immediate payment without it is being stipulated, there is no harm. The limitation of five or less only applies to one who granted the 'ariyya. He can buy them with cash or goods.]