The Marketing Contract Juristic Categorization And Ruling

A Refereed Study

The Marketing1 Contract Juristic Categorization and Ruling

Dr. Abdullaah ibn Naasir asSulamee2 1

2

As the Arabic term 'tasreef' has no ready equivalent in English, I believe that the most appropriate equivalent should be 'marketing'; for when tasreef applies to goods, it normally means 'marketing, promoting and merchandising'. For a detailed discussion of this term, consult the next few pages. For the rest of the paper, however, I will confine myself to the use of the Arabic term. (Translator's Note) Assistant Professor of Comparative Jurisprudence, Higher Institute of Justice, Imam Muhammad ibn Saud Islamic University, Riyadh, and the Dean Designate of the Institute.

The Marketing Contract: Juristic Categorization and Ruling

Preamble All praise is due to Allah; we praise Him, seek His help and forgiveness and seek refuge with him against the mischief within ourselves that of and our bad deeds. Whomever Allah guides none can misguide and whomever Allah misguides none can guide. I bear witness that there is no god worthy of worship except Allah, alone and without any partners; and I bear witness that Muhammad is His servant and messenger. Man has a natural propensity for possession and tends to shun everything that poses a risk in many of his commercial dealings. It is for this reason, therefore, that he sometimes resorts to some restrictive conditions in the contracts he concludes with others in order not to be bound by the contract and its original requirements so that he becomes assured that the contract's continuity is in his favour. Perhaps one of the contracts that are commonly concluded these days on a large scale is the so-called tasreef contract. Even though there is no mention whatsoever of a contract that carries this name in books of Islamic jurisprudence, Muslim jurists have actually looked into the rulings on its forms that are common today, using definitions and terms that are totally different from the term used in the present study. Therefore, I would like to make the present humble contribution to clarify the juristic categorization of this type of contract along with the rulings on its various forms. I pray to Almighty Allah to assist me in this task and to guide me to that which is right.

Introduction The introduction consists of two sections: I. The linguistic and technical definitions of the Arabic word 'aqd (contract) II. The linguistic and technical definitions of the Arabic word tasreef

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I. Linguistic and Technical Definitions of the Arabic Word 'Aqd (Contract) A. Linguistic Definition of the Arabic Word 'Aqd The word 'aqd is a noun (plural: 'uqood) which carries numerous meanings including the following:  Tying tightly, such as tying a rope.  Confirmation and attestation; in the context of a covenant or an oath, for instance, it means to confirm it.  'Aqd also carries the meaning of covenant and fulfilment; in this context, it denotes 'entering into a covenant, binding oneself'.3 By considering these linguistic meanings of the word 'aqd, it becomes clear that it is used for corporeal matters, such as 'tying a rope' as well as for legal matters, such as 'aqd al-bay' (sale contract) and aqd annikaah ' (marriage contract) in the sense of concluding them. 4 B. Technical Meaning of the Arabic Word 'Aqd Technically, the noun 'aqd is used in two senses: 1. General Sense: In this sense, it refers to any commitment one takes upon oneself to honour in return for another commitment or agreement, such as a sale or marriage; or in return for nothing, such as an oath; for a person who takes an oath has in actual fact taken it upon himself to honour a commitment to do something or not to do it.5 2. Specific Sense: Muslim Jurists have furnished different definitions of the word 'aqd including the following:

3See

Al-Qaamoos al-Muheet, p. 383; Lisaan al-'Arab, 3/296; Al-Misbaah al-Muneer, 2/71; Mu'jaam Maqaayees al-Lughah, 4/86; and Al-Mufradaat Fee Ghareeb al-Qur'aan, p. 341. 4 See at-Tabaree's Jaami' al-Bayaan, 9/451; al-Jassaas's Ahkaam al-Qur'aan, 2/294; and alQurtubee's Al-Jaami' Li Ahkaam al-Qur'aan, 6/23, al-Kutub al-'Ilmiyyah Publishers. 5See Ibn Taymiyyah's Qaa'idat al-'Uqood, p. 95, in which he mentions that Imaam Ahmad said that that 'uqood (pl. 'aqd, contracts) includes all kinds of obligations and that this is the very interpretation Qur'an exegetes have stated in their interpretation of the Qur'anic verse "O you who believe! Fulfil [all] obligations ('uqood)." (Surat al-Maa'idah, 5:1). See also Ash-Shaafi'ee's Ahkaam al-Qur'aan, 2/56-66 and Al-Jassaas's Ahkaam alQur'aan, 2/259.

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 A statement one of the two contracting parties makes to the other contracting party whose effect becomes legally binding. 6  The combination of one of the two contracting parties' offer and the other party's acceptance regarding the purpose and content of the contract, or the statement made by someone who undertakes to represent them.7  The correlation between the offer and acceptance which become legally binding, such as a sale contract and a marriage contract. 8 Combined together, these definitions state that the meaning of the word 'aqd (contract) is an agreement which binds the contracting parties depending on whatever statements they have made or conditions they have stipulated whose effect becomes legally binding. This is the specific meaning intended in the present paper. Allah knows best.

II. Linguistic and Technical Definitions of the Arabic Word Tasreef A. Linguistic Definition of the Arabic Word Tasreef The three letters s, r and f of which the Arabic word sarafa is composed carry a number of meanings including the following:  'Working out, managing and contriving'. When used in the context of transactions, it refers to spending and circulating money. We say that a man sarafa li'iyyaalihi (for his family) to mean he is doing all he can to support his family.  'Transferring something from one place to another'. When used with reference to the winds, it means they move in a current from one place to another. The Arabic word sarraaf (money-changer, whose business is to change money of one country for that of another) is a derivative of this word. Anees al-Fuqahaa', p. 203. See Fath al-Qadeer, 2/341; Haashiyat Ibn 'Aabideen, 2/258; Haashiyat ad-Dasooqee, 3/5; and Haashiyat al-Qaasim 'Alaa Tuhfat al-Muhtaaj, 4/214. 8 Az-Zarkashee, Ad-Durr al-Manthoor, 22/397. It is recommended to refer to Nadhraiyyat al-'Aqd by Sheikh Abu Zahrah, p. 201; Mukhtasar al-Mu'aamalaat, by Sheikh 'Alee alKhafeef, p. 72; and Masaadir al-Haqq Fee al-Fiqh al-Islaamee by As-Sanhooree, 1/74. 6 7

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 'To turn away or aside'. The Qur'anic words "Thumm-an-sarafoo" (…then they turned away) (Surat at-Tawbah, 9:127), in which the word sarafa is used in the plural form to refer to the hypocrites, means they turned away from the place where they heard the Qur'an being recited. 9 B. Technical Definition of the Arabic Word Tasreef As far as the technical definition of the term tasreef is concerned, I have not come across any such definition by jurists, past and present, or even by any researchers. However, the linguistic meaning in generally denotes almost the same thing as the technical meaning. I will, however, provide a comprehensive definition of this type of contract in such a manner as to include all the forms of tasreef to be mentioned later on. The definition is: Tasreef is a type of contract by virtue of which one of the two contracting parties takes it upon himself, with regard to the other party, to complete the transaction or otherwise, make it conditional on selling the object of the contract (ma'qood' alayhi) or authorise the other party to sell the item of sale or entrust him to push the sale of the merchandise in return for a certain amount of money. The statement "One of the two contracting parties takes it upon himself, with regard to the other party" implies that the buyer may state as a condition that if he fails to sell the merchandise he will return it; it also implies that the seller may state as a condition that the buyer buys the merchandise, and if he does not manage to push its sale he can return it. This also includes the possibility of stipulating a condition of selling the merchandise in the contract or an absolute optional conditional (shart al-khiyaar).10 The statement "…make it conditional" makes it clear that the absolute agreement to promote and sell the merchandise is included.

See Lisaan al-'Arab, 9/189-192; Al-Mu'jam al-Waseet, p. 513; Al-Qaamoos al-Muheet, p. 11069; and Asaas al-Balaaghah, p. 353. 10 Shart al-khiyaar is involved where the executor of a contract makes an explicit mention of the word khiyaar (option) while executing the contract and thereby reserves for himself the right to use it. For in stance, he may say, "I sell this article to you and I shall have the option to annul the sale and revoke it within such-and-such a period." (Translator's Note) 9

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The statement "or entrust him…" includes the fourth type of contract, namely ju'aalah 11 contract. An example of this is the merchandise owner's saying, "Sell the merchandise for one hundred [dollars, for instance], whatever extra profit you make is yours."

Part I: Juristic Categorisation of the Tasreef Contract By juristic categorisation of the tasreef contract is meant its position with regard to the other types of contracts: Is it a new type of the other well-known contracts, or is it included in the other contracts mentioned by the early jurists (may Allah have mercy on them)? It is worth mentioning here, however, that some of the well-known contracts encompass numerous forms which people have introduced in their dealings with others. In fact, Muslim jurists have concerned themselves with such forms that some of these jurists have coined new terms for them in order to detail Islamic rulings regarding them and to distinguish them from the known contracts due to some conditions and qualities which are more often than not related to them. Perhaps the Hanafite school of jurisprudence is the best known in introducing new contracts and distinguishing them from other similar types of common contracts. Some of the contracts they have introduced include the istisnaa 12 ' and the istijraar13 contracts. In fact, it is acceptable to give

Ju’aalah (also ji'aalah; Arabic ‘payment, reward’): unilateral deal where one party (jaa’il) declares that he will reward anyone who will provide him with the required service, such as when the owner of a lost object advertises a reward for any one who will return to him the lost thing. The person who provides such a service has the right to be remunerated for his work. (Translator's Note) 12 The istisnaa' contract is a contract in terms of which a person buys on the spot something that is to be manufactured which the seller undertakes to provide, af ter manufacturing, some materials of his own, according to designated specifications against a determined price. (Translator's Note) See also Tuhfat al-Fuqahaa', 2/538. 11

13

The istijraar contract is a contract between a supplier and a client whereby the supplier supplies a particular item on an ongoing basis on an agreed mode of payment until they terminate the contract. It is also applied between a wholesaler and a retailer for

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names to certain dealings and forms of transactions as long as they are governed by the same category or special designation with the aim of distinguishing them form other dealings and forms of transactions. Such new names, however, must not be used as a criterion to judge them as being lawful or unlawful given that they are entirely new forms of transactions of which past jurist made no mention whatsoever and that transactions are essentially lawful. As a matter of fact, some of the names given to certain new contracts by no means provide a general ruling. Therefore, it is imperative to study each case separately even though the ruling regarding some of them varies in terms of their being permissible or otherwise. Perhaps the tasreef contract, whose ruling the present paper will undertake to clarify, is one of such contracts. A cursory look at the forms of transactions under the tasreef contracts will reveal that they are all limited to the following forms:

I. Sale with the restrictive Condition included in the Contract

By 'restrictive condition/s' is meant the condition/s stipulated by the contracting parties in their contracts which require extra obligations on their behalf. To illustrate, one of the two contracting parties sells a house to the other party on condition that the seller will reside in it for a month; to buy firewood on condition the seller delivers it to the buyer's residence; or to buy a piece of cloth on condition the seller makes a shirt from it.14 The restrictive condition is known as "the condition stipulated in the contract". 15 Muslim jurists, past and present, have provided numerous definitions of this restrictive condition, including the following: the supply of a number of agreed items. (Translator's Note) See Radd al-Muhtaar, 5/183 and Dhawaabit ath-Thaman Wa tatbeeqaatuhu Fee 'Aqd al-Bay', p. 214. 14 See Zakiyyud-Deen Sha'baan, Nadhariyyat ash-Shoroot al-Muqtaranah, p. 29; Dr. Shaadlee, Nadhariyyat ash-Shart, p. 51; and Dr. Zaydaan, Al-Wajeez Fee Usool al-Fiqh, pp. 61-62. 15 See Ahmad as-Saawee, Haashiyat as-Saawee 'Alaa ash-sharh as-Sagheer, 3/232; Al'Amraanee, Al-Bayaan, 5/129; Ibn Qudaamah, Al-Kaafee, 3/57. For further details, see Al-Mawsso'ah al-Fiqhiyah al-Kuwaytiyah (Kuwaiti Encyclopaedia of Jurisprudence), 26/6-9 and Dr. Muhammad al-Yamanee, Ash-Shart al-Jazaa'ee Wa Atharuhu Fee al-'Uqood alMu'aasirah, p. 79.

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1. Some Hanafite jurists define it as "stipulating a condition that was non-existent in a matter (i.e. contract) which already exists".16 Two remarks, however, can be made regarding this definition, namely,  It is too general in that the intended meaning is not clear  It does not include all the components of the defined term, for the matter to be stipulated may already exist at the time of concluding the contract; an example of which is stipulating that the object of contract should have a certain characteristic, and the like. 17 2. Some Hanbalite jurists have defined it as "the obligation one of the two contracting parties' imposes on the other party as long a it is bound to yield a certain benefit (manfa'ah)" 18 , and they have qualified such a benefit as a "legally valid objective".19 Some scholars, however, have objected to this definition, stating that it is not comprehensive in that it does not mention whether such a benefit could be of any avail to other than the two contracting parties or whether it does not have any benefit whatsoever. 20 I believe, however, that such an objection is not strong enough, for the condition one or both of the contracting parties stipulate does not preclude the possibility of there being a certain benefit; furthermore, this benefit need not be tangible, and that is why they have qualified the term manfa'ah (benefit) as a "legally valid objective". However, it would be better if the word "benefit" were used instead. A further objection to this definition states that it does not include the condition required by the contract and which confirms the original commitment; an example of such a condition is to stipulate that if someone buys a garment he should wear it, or to stipulate that the collateral tendered should be sold for the debt owed.21 See Al-Hamawee, Ghamz 'Uyoon al-Basaa'ir, 4/41. See 'Abdullaah al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 24; and Mustafa az-Zarqaa, Al-Madkhal al-Fiqhee al-'Aamm, 1/506. 18 See Muntahaa al-Iraadaat, p. 286; Al-Buhootee, Kashshaaf al-Qinaa', 3/188; Ibn Qaasim, Ar-Rawdh al-Murbi', 4/392; and Ibn Muflih, Al-Mubdi', 4/51. 19 See Haashiyat ar-Rawdh al-Murbi', 4/392. 20 Al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 24. 21 See Ash-Shart al-Jazaa'ee Wa Atharuhu Fee al-'Uqood al-Mu'aasirah, p.80. 16 17

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I believe (but Allah knows best) that such objection needs careful consideration, for all the conditions required by the contract have some kind of benefit and a legally valid objective for both contracting parties, whether they have stipulated such conditions in the contract or not. If, however, such conditions — which are implied and required by the contract —are expressly stated, then they serve the purpose of confirming such conditions, in which case such conditions are deemed metaphorical rather than literal because such an express statement does not add anything to the original provisions of the contract. 22 An example of a form of sale with a restrictive condition is when two parties conclude a sale transaction whereby the buyer stipulates that if he does not manage to merchandise or sell the commodity he has bought (or part of it), he will return it (or return part of it) to the seller. Another example is the buyer's saying to the seller, "I will buy the commodity on condition that I will return it in the event it is not sold well." In fact, this is the dominant form of transactions practised today, especially with regard to consumable goods which people need on a daily basis, such as dairy products and derivatives, newspapers and magazines. Indeed, sellers fiercely compete with one another for consumer attention regarding such products, and perhaps some of the companies which produce these products and goods provide business and store owners with a number of equipment and means bearing catchy brand names to secure their products; these include, among other things, refrigerators which they give them for free, as a way of promoting and advertising such products as well as attracting customers. These companies and trademark owners may also resort to providing business and store owners and even their customers with incentives to purchase and promote their products.

22

For further details, see Badaa'i' as-Sanaa'i', 5/171; As-Samarqandee, Tuhfat al-Fuqahaa', 2/611; Ash-Shaadhlee, Nadhariyat ash-Shart Fee al-Fiqh al-Islaamee, p. 173; Al-Madkhal al-Fiqhee al-'Aamm, 1/506; and Abu Zahrah, Usool al-Fiqh, p. 62.

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II. Sale Contract made Contingent on a Future Event Regarding this form of transaction, Muslim jurists use the expression "ta'leeq al-bay' 'alaa shart'23 (making sale contingent on a future event). In fact, it is one of the forms of acceptance in the sale contract and is the opposite of the so-called 'aqd munjaz 24 (completed contract). Linguistically, the infinitive of the Arabic word ta'leeq (making something contingent on something else) is 'allaqa, which means 'hang, suspend and dangle', all of which denote hanging something on something higher25 ; the derivative word mi'laaq refers to the hook with which meat and similar things are suspended. The word mu'allaqah refers to a woman who is "left hanging in the air"; that is, she is still married but her husband abandons her in such a way that she is considered to be neither married, nor divorced. 26 Technically, some Hanafite jurists have defined it as "attaching the occurrence of something on the occurrence of something else." 27 The Hanbalite jurist al-Hajjaawee, however, clearly and simply defines it as "making something which has taken place on something which may or may not take place." 28 The phrase "something which has taken place" is additional information in the definition which is not mentioned in the definition provided by the Hanafite jurists. This statement includes contingency on something which has taken place; therefore, even though the thematic See Az-Zayla'ee, Tabyeen al-Haqaa'iq, 4/131; Al-Qaraafee, Al-Furooq, 1/229; Jawaahir alIkleel, 1/248; Az-Zarkashee, Al-Manthoor Fee al-Qawaa'id, 1/373; and Ibn Qaasim, Haashiyat ar-Rawdh al-Murbi', 4/405. 24 In this type of contract, the form of acceptance is free from any conditions of restrictions and become binding as soon as it is concluded. In fact, such a contract incorporates the original form found in all contracts. The offer in such a contract will be something like "I'll sell you my house for such-and-such an amount." See 'Alee alKhafeef, Al-Mu'aamalaat ash-Shar'iyyah, pp. 220-221; and Muhammad abu Zahrah, AlMilkiyyah Wa Nadhariyat al-'Aqd, p. 256. 25 See Mu'jam Maqaayees al-Lughah, 4/125. 26 See Lisaan al-'Arab, 10/261-264; Al-Matrizee, Al-Mughrab, p. 326; and Al-Misbaah alMuneer, p. 425. 27 See Ibn Nujaym, Al-Ashbaah Wan-Nadhaa'ir, p. 436; Sharh at-Talweeh 'Alaa at-Tawdheeh, 1/120; and Durar al-Hukkaam Sharh Gharar al-Ahkaam, 2/376. 28 See Al-Iqnaa' Ma'a Sharh Kash-Shaaf al-Qinaa', 5/284. 23

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purport is that of tanjeez (i.e. completing the contract), its form is that of ta'leeq (i.e. making it conditional on a future event).29 Making sale transactions contingent on future events in the tasreef contract takes place in the following two ways:  By using one of the conditional particles30 . As an example of this is form of transactions, the buyer says to the seller, "If I manage to merchandise the commodity and sell it, that is fine; otherwise, the sale contract we have concluded will not be binding." He may also say, "I will buy the commodity if I manage to merchandise it and sell it; otherwise, thee sale contract will be null and void." In these statements, the buyer makes the first sale transaction between him and the seller contingent on the merchandising and selling of goods by using a conditional particle, which is 'if' in this instance.  The general meaning in the linguistic context of the statement, as has been mentioned by some Hanafite jurists31 . To illustrate, the seller may tell the buyer, "The goods which you do not merchandise and sell to others will be mine", or he may say, "…will not be deemed sold to you." This statement clearly states a condition in the context without the use of the conditional particle. Here, the seller makes it clear that the sale contract will not be binding should the buyer fail to merchandise and sell the commodity. In fact, there are some differences between the two aforementioned forms of sale, namely the sale contract which includes the restrictive condition and the sale contract made contingent upon an event in the future. These differences essentially stem from the differences between shart (condition) and ta'leeq (making something conditional upon

See Al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 12. The Arabic conditional particles include, among other things, in, idhaa and lau which are all equivalent to the English 'if'; kullamaa and mataa maa, which both mean 'whenever; and mahmaa, which is equivalent to 'whenever' and 'whatever'. See Rawdhat at-Taalibeen, 8/128; Al-Mughnee, 10/443; Fawaatih ar-Rahamoot, 1/248; Tayseer atTahreer, 2/120; and At-Talweeh 'Alaa at-Tawdheeh, 1/120. 31See Fath al-Qadeer, 3/442-449; Al-Fataawaa al-Hindiyyah, 1/420; and Majma' al-Anhur, 1/417. 29 30

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something else). Following are the principal differences between these two forms:  Unlike the stipulation of a condition in the sale contract which requires the use of such phrases as ''alaa an' or 'bisharti an', which both mean 'on condition that', making a sale transaction contingent upon a certain condition requires the use of a conditional particle, such as 'in' (if) and any of the other conditional particles.  The sale that is made contingent upon a certain condition does not become effective prior to the fulfilment of the condition upon which it depends. When the buyer says to the seller, "If I manage to merchandise the commodity and sell it, that is fine; otherwise, the sale contract we have concluded will not be binding," he actually makes the sale contract with the seller contingent upon the fulfilment of the future condition, namely the merchandising and selling of goods. Conversely, the condition stipulated in the sale contract is there and its rulings and obligations under the contract become binding as soon as the mode of expression in the contract is issued.32  The act of making the sale contract contingent upon a future condition becomes rather inconsequential regarding the contract and its future rulings. To put it bluntly, as soon as the condition upon which the contract becomes contingent is met, the contract will be regarded as though there has never been a condition binding it and all its rulings and obligations under the contract will become effective. As for the condition stipulated in the contract, it actually affects the rulings and obligations under the contract and will have a twofold function: (1) Either to restrict the rulings and obligations under the contract after the contracting parties have had the freedom to dispose of the tangible asset of the transaction (mabee'), such as the seller's stipulation that he would reside in the house he has sold for a month or to ride the riding animal he has sold to a certain place; or (2) to confirm the requirements of the contract, such as meeting the requirements of the object of the contract; an example of which is when the seller 32

See Az-Zarkashee, Al-Manthoor Fee al-Qawaa'id, 1/270; Ash-Shaadhlee, Nadhariyat ashShart, pp. 55-56; and Ash-Shart al-Jazaa'ee Wa Atharuhu fee Al-'Uqood al-Mu'aasirah, p. 82.

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stipulates, in the case of deferred payment, the existence of a certain pledge or collateral (rahn)33 or guarantor (kafeel)34 or the addition of certain matters which are not required by the contract, such as buying firewood on condition the seller breaks it to pieces.35

III. Concluding a Sale Contract with the Option of Stipulation36 To give an example of this form of transaction, the contracting parties conclude a sale contract on condition that the buyer has the option to execute it or rescind it. Some buyers fix a specific period of time for this option, such as one or more weeks, to merchandise and sell the goods; otherwise, they will have to return them to the seller. Some other buyers fix an unknown period of time by saying, for instance, "I will purchase the goods and I have the option to return the tangible asset of the transaction (mabee') or part of it at the end of the season." Some others do not specify any period of time whatsoever by saying, for example, "I will buy the goods on condition that I have the option to return the tangible asset of the transaction or part of it."

33

34

35 36

This means to pledge or lodge a real or corporeal property of material value, in accordance with the law, as security, for a debt or pecuniary obligation so as to make it possible for the creditor to recover the debt or some portion of the goods or property. (Translator's Note) The word kafeel is derived from kafaalah, which literally means responsibility or amenability. Legally in kafaalah a third party becomes surety for the payment of a debt. It is a pledge given to a creditor that the debtor will pay the debt, fine etc. Kafaalah in Islamic law is the creation of an additional liability with regard to the claim, not to the debt or assumption only of the liability and not of the debt. (Translator's Note) See Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 55-56. The option of stipulation is termed in Arabic khiyyar ma'ash-shart and refers to the condition stipulated by one or both of the parties to a contract to execute or cancel the contract for any reason for a fixed period of time. See Radd al-Muhtaar, 4/565; Minah alJaleel Sharh Mukhtasar Khaleel, 5/111-112; Kash-shaaf al-Qinaa', 3/202; and Nayl alMa'aarib Fee Tahdheeb Sharh 'Umdat at-Taalib, 3/56.

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IV. Authorising Someone to Sell the Goods at a specific Price and Giving the Broker the Amount Exceeding the Fixed Price An example of this is the common practice of authorising store owners to sell a certain commodity for, say, SR 100 and to keep any extra profit they make.37 This from of transaction is next only to the first form in terms of practice, and it is practised even more by authorized trademark agents in certain parts of the world (such as the authorized trademark agents of certain rug stores), in which case trademark owners desire to have their products marketed and thus they request some store owners to sell their products in this manner.

Part II: The Islamic Ruling Regarding the Tasreef Contract Bearing in mind the foregoing discussion regarding the different forms of the tasreef contract, it becomes clear that such a contract falls under two types of contracts, namely the sale contract and the ju'aalah contract38 , as will be made clear in the fourth section of the present part. This does not mean, however, that the tasreef contract is a combination of both contracts or that they both have to be concluded at once for the tasreef contract to be called as such. It is worth mentioning here, though, that this contract, along with all its types, has assumed a new name which has become common amongst people and which was not known to past jurists with such an appellation. Therefore, it is not appropriate to apply a general ruling to it without taking into account the comprehensive fundamentals as well as the fundamental criteria deduced from the legal texts as to the form of transactions which fall under such an appellation; for the fundamental principle to be considered regarding contracts are the intents not the forms and 37

See Al-Ghurar al-Bahiyyah Fee Sharh al-Bahjah al-Wardiyyah, 3/311. (also ji'aalah, ‘payment, reward’): unilateral deal where one party (jaa’il) declares that he will reward anyone who will provide him with the required service, such as when the owner of a lost object advertises a reward for any one who will return to him the lost thing. The person who provides such a service has the right to be remunerated for his work. (Translator's Note)

38Ju’aalah

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expressions39 . The erudite scholar Ibn al-Qayyim (may Allah have mercy upon him) writes in this connection, "The principles of Islamic jurisprudence attest to the fact that what needs considering concerning contracts are their essence and intents not their forms and expressions."40 Thus, if a person says to another one, "I'll give you this piece of cloth for SR 100", the transaction is an example of a sale contract and not a gift contract despite the fact that former has used the word 'give' in his statement, just as it is used in a gift contract, for words by no means change the true nature of contracts. In the present paper, I will mention the ruling regarding each one of the forms mentioned in the previous part along with Muslim jurists' views and arguments, the evidence they have furnished in support of their opinions as well as the preponderant view in this respect, as follows:

I. The Ruling regarding the Sale Contract with the Condition that if the Goods do not sell well they will be returned to the Seller

Indeed, this constitutes the commonest form of transactions under the tasreef contract. Scholars, however, have expressed three different opinions in this regard, as follows: First Opinion: This contract and its condition are both null and void. This is the view of the overwhelming majority of Muslim scholars. It is the view of the Hanafites41 and the well-known and adopted view of the Maalikites. 39See

Badaa'i' as-Sanaa'i', 5/3; Al-Wanshareesee, Al-Mi'yaar, 4/95; Al-Manthoor Fee alQawaa'id, 2/371; and Majmoo' Fataawaa Ibn Taymiyyah, 30/1522. 40 See Zaad al-Ma'aad Fee Hadyi Khayr al-'Ibaad, 5/200; Ighaathat al-Lahfaan Min Masaayid ash-Shaytaan, 2/114; and Tabyeen al-Haqaa'iq, 5/1. 41 See Al-Kaasaanee, Badaa'i' as-Sanaa'i', 5/165; As-Sarakhsee, Al-Mabsoot, 13/15AzZayla'ee, Tabyeen al-Haqaa'iq, 4/58; Ibn Nujaym, Al-Bahr ar-Raa'iq, 6/93; Ibn alHumaam, Fath al-Qadeer, 6/442; As-Samarqandee, Tuhfat al-Fuqahaa', 2/65; and Haashiyat Ibn 'Aabideen, 4/121. The Hanafites distinguish between two types of conditions in the contracts of exchange (mu'aawadhaat, or commutative exchange involving the voluntary exchange of good, services, and/or both for the purpose of trade, and includes cash sales, bartering, and currency exchange) , as follows: 1. Invalid conditions which render the contract null and void: These include (1) conditions which lead to the commission of prohibited acts such as getting involved in

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The Maalikites do maintain, however, that this applies as long as the condition is strictly adhered to; if the condition is waived, the contract is still valid as long as the tangible asset of the contract is intact; if it perishes for some reason the contract then becomes null and void. The criterion they adopt in this regard is that any condition that contradicts the objective and the requirement of the contract is without doubt invalid and thus renders the contract null and void as long as the buyer still adheres to the condition. The topic under study falls under this type of transaction, for the contract requirement according to them is that the asset of the transaction (mabee') belongs to the buyer and assumes full responsibility in this respect whether it sells well or not. 42 usurious transactions, (2) conditions which lead to risk-taking, uncertainty, deceptive practices and thus disputes, (3) conditions which are not required by the contract, nor constitute the common practice amongst people ('urf), nor is approved by the Islamic Law (Sharee'ah), (4) conditions which constitute a certain benefit to the object of the contract (ma'qood' alayhi) if it is a human being, or to one of the contracting parties if he so deserves such a benefit. An example of the conditions which lead to risk -taking, uncertainty and deceptive practices is to impose the condition that the cow the purchaser buys must produce a certain amount of milk; an example of the condition which constitutes a certain benefit to one the contracting parties is when someone buys a piece of cloth and stipulates the condition that the seller makes a shirt from it; and yet another example of the condition which constitutes a certain benefit to the object of the contract is when someone sells a slave-girl on condition that the buyer does not sell her. 2. Invalid conditions which do not render the contract null and void: These include conditions which constitute a certain benefit to the object of the contract ( ma'qood 'alayhi) if it is not a human being, such as a riding animal or car in which case one sells it on condition the buyer does not use it; conditions which constitute a certain benefit to someone who is not a party to the contract, such as selling one's house and imposing the condition that the buyer must lend the seller's next-door neighbour SR 10,000; and conditions which are stipulated by one of the two contracting parties and which constitute neither a benefit nor any type of harm to him, such as selling a piece of cloth on condition that the buyer alone wears it or selling food and stipulating the condition that only the buyer eats it. In addition to the above-mentioned sources, see also Ash-Shaadhlee, Nadharaiyat al-'Aqd, pp. 188-189 and 204-208; Sha'baan, Nadhariyat ash-Shuroot al-Muqtarina Bil-'Aqd, pp. 114-116; and Dr. Muhammad 'Uthmaan Shabeer, Al-Madkhal Fee Fiqh al-Mu'aamalaat al-Maaliyah, p. 262. 42 See Al-Mawwaaq, At-Taaj Wal-Ikleel Li Mukhtasar Khaleel, 6/242; Haashiyat ad-Dasooqee, 3/65-66; Sharh al-Kharshee 'Alaa Mukhtasar Khaleel, 5/81; Al-Hattaab, Tahreer al-Kalaam

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This is also the view held by the Shaafi'ites43 , one of the opinions expressed by Imaam Ahmad44 (may Allah have mercy on him) as well as the view held by the Dhaahirees.45 Second Opinion: The contract is definitely valid but the condition is not so. This is the view of Al-Hasan al-Basree46 (may Allah have mercy on him), Fee al-Iltizaam, pp. 327 and 345; Ibn Jizzee, Al-Qawaaneen al-Fiqhiyyah, p. 262; 'Ullaysh, Fath al-'Alee al-Maalik, 1/344; Ibn Rushd, Al-Muqaddimaat, 5/405; Mawaahib al-Jaleel, 6/242. Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 231; Al-Azharee, Jawaahir al-Ikleel, 2/225; and Nadhariyat ash-Shroot al-Muwtarinah Bil-'Aqd, p. 123. 43 See Al-Umm, 8/185; Al-Ansaaree, Al-Ghurar al-Bahiyyah, 2/426-427; Asnaa al-Mataalib, 2/31; An-Nawawee, Rawdhat at-Taalibeen, 3.400, Haashiyat al-Jamal, 3/74-75; and Haashiyat al-Bayjarmee 'Alaa al-Manhaj, 2/210; Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 259-270; Ash-Sharbeenee, Mughnee al-Muhtaaj, 2/34; and al-hakamee, Ash-Shuroot alJa'liyyah, p. 35. 44 See Al-Furoo', 4/64; and Al-Insaaf, 4/351. The Hanbalites make a difference between two types of invalid conditions, namely: 1. Invalid conditions which render the contract null and void: These include contracts leading to having two contracts in one single contract with two different types if 'wad (equal counter value or compensation), such as a sale and loan contract and a sale and sarf (exchange money for money) contract. They also include having two conditions in the same contract and the condition of time stipulations (ta'qeet) which apply to marriage contracts, such as the temporary marriage (zawaaj al-mut'ah) and the marriage contract which is not concluded with the true intention of getting married but for the sole purpose of making a woman lawful for her first husband after she has been divorced for the third time (zawaaj al-muhallil). 2. Invalid conditions which do not render the contract null and void: These include, among other things, those conditions which contradict the contract requirements such as when the seller stipulates that the buyer does not give the asset of the transaction (mabee') away, when the buyer stipulates that he will not bear any losses whatsoever or when he imposes the condition that he will return the goods he has purchased to the seller in the event that they do not sell well. They also include conditions which involve some kind of ignorance or indefiniteness in the contract which may lead to risk-taking and uncertainty. An example of this condition is when a buyer stipulates an unknown option to annul a contract (khiyaar) and an unknown end date of the contract (ajal). These conditions are invalid but they do not render the contract null and void as they do not invalidate its purpose. 45 The Daahirees are followers of the Dhaahiree School of Jurisprudence whose followers accepted only the most literal interpretation of the Qur’an and hadeeth. (Translator's Note) See Ibn Hazm, Al-Muhallaa, 9/404 as well as Al-Ihkaam Fee Usool al-Ahkaam, 5/815.

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Muhammad ibn Abee Laylaa 47 , Abu Thawr48 and Ibn al-Mundhir49 . Abu Thawr also ascribed it to Ash-Shaafi'ee (may Allah have mercy on him), but this ascription was disproved by some scholars50 . It is also the opinion adopted by the Hanbalites51 , the view stated by Imaam Ahmad and the view chosen and preferred by Al-Kharqee, Ibn Qudaamah and other jurists. Third Opinion: Both the contract and the condition are valid. This was the view held by 'Umar ibn al-Khattaab52 , 'Ali ibn Abee Taalib53 , 'Abdullaah ibn Mas'ood54 (may Allah be pleased with them all), Shurayh al-Qaadhee55 , Ash-Sha'bee56 , Ibn Taymiyyah, as deduced from his general statements on the issue57 . Ibn Taymiyyah also attributed it to Imaam Ahmad thus, "[Imaam] Ahmad's statements are to this effect." He also said, "According to his (i.e. Imaam Ahmad's) most statements, the seller is allowed to impose a condition on the buyer to do something or not to do it regarding the tangible asset of the transaction (mabee') which the seller intends or regarding the mabee' itself, even though the majority of the later jurists deem manumission the only permissible act in this regard. Reports to such effect have been attributed to him, but most of his

Ibn Abee Shaybah, Al-Musannaf, 11/248. See An-Nawawee, Al-Majmoo', 9/452 48 See An-Nawawee, Al-Majmoo', 9/452; and Al-Mughnee, 6/166. 49 See An-Nawawee, Al-Majmoo', 9/452; and Al-Mughnee, 6/166. 50 See Al-'Umraanee, Al-Bayaan, 5/132; and An-Nawawee, Al-Majmoo', 9/453-454 51 See Al-Mughnee, 6/132Abu Ya'laa, Al-Masaa'il al-Fiqhiyyah, 1/349-350; al-Fatoohee, Ma'oonat Ulee an-Nuhaa Sharh al-Muntahaa, 4/63-64; and Al-Insaaf, 4/350-351. 52 See Ibn Abee Shaybah, Al-Musannaf, 11/327; and Sa'eed ibn mansoor, As-Sunan, 1/216. 53 Ibn Abee Shaybah, Al-Musannaf, 11/329. 54 Ibid., 11/250. 55Ibid., 11/327. 56 Ibid., 11/328. 57 See Majmoo' al-Fataawaa, 29/126-127 and 132-133; and Al-Qawaa'id an-Nooraaniyah, p. 210. What actually made me say that this is what I have deduced from his general statements is that I have not found a single text attributed to him in which he clearly states the ruling regarding the buyer's condition to return the goods if he they do not sell well. However, his general judgments in this regard—albeit not explicit—as will be made clear later, strongly confirm the attribution I have made to him. 46 47

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statements support the first view." 58 His disciple Ibn al-Qayyim59 (may Allah have mercy on him) was also of this opinion. Ibn Taymiyyah, however, mentioned another issue related to this point, namely: As for those things which are permissible to do without stipulating a condition, is it necessary to stipulate a condition? In answer to this question, he writes, "There is some kind of disagreement amongst scholars in this regard; The [Sharee'ah] fundamentals and textual evidence [from the Qur'an and the Sunnah], however, support the view that such a practice is absolutely permissible." 60 It is well-known that if the buyer wants to return the tangible asset of the transaction (mabee') to the seller without any condition whatsoever and the seller agrees to that after departing the place where the sale contract has been concluded, then both the act of returning the mabee' and that of merchandising and selling it are absolutely valid. Therefore, the act of returning the asset of the transaction with a condition is also permissible. Ibn Taymiyyah also writes in this connection, "The fundamental principle to be considered regarding contracts and conditions is that they are valid and permissible, and none of them is regarded impermissible or invalid except the ones the Sharee'ah rules are clear as to their being impermissible or invalid, either through textual evidence [from the Qur'an and the Sunnah] or through analogical reasoning (qiyaas) for those who adopt analogical reasoning in this respect. In fact, most of [Imaam] Ahmad's statements are to this effect…" 61 He further explains that most of the conditions, which he deems valid and generally stated by Imaam Ahmad, some others consider invalid for the sole reason that they contradict the contract requirements, thus: "Most of the contracts and conditions [Imaam] Ahmad deems permissible are those which are similar to them due to some specific See Al-Qawaa'id an-Nooraaniyah, pp. 210, 212 and 213. Here he mentions the texts attributed to Imaam Ahmad in this respect. See also Ibn Rajab, Taqreer al-Qawaa'id Wa Tahreer al-Fawaa'id, (edition revised by Mash-hoor Hasan), 3/26; and Al-Insaaf, 4/351, where he reports one of Imaam Ahmad's statements to this effect. 59 See I'laam al-Muwwaqqi'een, 1/344. 60 See Al-Qawaa'id an-Nooraaniyah, p.16. 61 Ibid., p.210. 58

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evidence from scholars' reports or from analogical reasoning; however, he does not see any reason why the evidence furnished by the former (i.e. that of those who consider the condition invalid) should render such a condition invalid; besides, this cannot be disproved by the claim that it is a condition which contravenes the contract requirements or that there is no legal text to support it…" 62 In refutation of the view whose proponents maintain that the conditions stipulated by Muslims remain generally invalid until a proof stating otherwise is furnished, Ibn al-Qayyim writes, "The majority of scholars oppose this view. In fact, contracts and conditions are essentially valid with the exception of those which the Legislator has declared impermissible or prohibited. The correct view in this regard is that to rule that they are invalid is a ruling which amounts to considering them prohibited and sinful practices; it is well-known that nothing must be declared unlawful except that which Allah and His Messenger declared as such, and that nothing can be declared sinful except that which Allah and His messenger declared as such…" 63 This statement also constitutes the view held by the Hanafites if we say that the restrictive condition in the tasreef contract renders the invalid conditions valid64 . Such a restrictive condition, as we have mentioned earlier on, states that the tangible asset of the transaction (mabee') will be returned to the seller if it is not merchandised or does not sell well based on the principle that permits transactions and prevailing customs ('urf) and which include invalid conditions such as stipulating a contract within another contract, or conditions which contravene the contract requirements, but which constitute a certain benefit to one of the contracting parties. In fact, the condition in the tasreef contract has become a prevailing custom ('urf) and hardly no one disapproves of stipulating such a condition. Al-Marghinani (may Allah have mercy upon him) writes in this respect, "Any condition which is not required by the contract and which constitutes some benefit to one of the contracting parties or to the object Al-Qawaa'id an-Nooraaniyah, p. 210. See also Majmoo' al-Fataawaa, 29/341-342 and 346. I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/344. 64 See Nashr al-'Arf Fee Binaa' Ba'dh al-Ahkaam 'Alaa al'Urf, 2/141. 62 63

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of the contract (ma'qood 'alayhi) if it is a human being certainly renders the contract null and void (such as when the seller stipulates that the buyer does not sell a slave who constitutes the tangible asset of the transaction (mabee'), as this entails an excess stipulated as an obligatory condition on the buyer without any return, or because he may be the cause of a dispute, in which case the objective of the contract is not realised) unless such a condition constitutes a prevailing custom ('urf); for the prevailing custom is given precedence over analogical reasoning." 65 These jurists draw a parallel here between the condition that is stipulated in accordance with the prevailing customs ('urf) and the valid condition which is legally established. 66 Ibn 'Aabiden (may Allah have mercy on him) provides examples in this respect, thus, "An example of this is the selling of things kept in containers, such as oil. The buyer stipulates that the seller must weigh both the oil and the container and then deduct the weight of the container by specifying a known number of ratl67 [which constitutes a prevailing custom]. In fact, such a condition is invalid because the contract requirement dictates that the container's actual weight is to be deducted; however, because this practice has become a prevailing custom ('urf) amongst many people in most cities, it is absolutely permissible. This condition is acceptable as there are similar cases mentioned in juristic books which state, among other things, that selling shoes on condition that the seller provides the buyer with shoes in a completely identical manner to his shoes with laces. The author of Al-

See Al-Hidaayah by Al-Marghinaanee along with its commentary Ma'a Fath al-Qadeer by Ibn al-Humaam, 6/442-443; and Ibn 'Aabideen, Nashr al-'Arf Fee Binaa' Ba'dh alAhkaam 'Alaa al-'Urf, 2/141. 66 See Nashr al-'Arf Fee Binaa' Ba'dh al-Ahkaam 'Alaa al-'Urf, 2/141. In fact, the condition stipulated in accordance with the prevailing custom ('urf) is considered valid by the Hanafites; however, Zafar (may Allah have mercy on him), who was a Hanafite himself, differed in opinion with them, stating that such a condition is not valid even if it is prevailing custom amongst people. See Badaa'i' as-Sanaa'i', 5/172 and Al-Mabsoot, 13/14. 67 Ratl (also spelt ritl) is a weight of 12 ounces, and as a measure of capacity, a pint, according to the standard of Baghdad. (Translator's Note) 65

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Bahr ar-Raa'iq68 writes, "Analogical reasoning determines that such [a condition] is invalid as it constitutes a certain benefit to the buyer while the contract does not require it; however, what is mentioned in juristic books approve of such practice. In fact, going against common practices clearly causes a great deal of difficulty as opposed to stipulating that the cloth seller should make a certain garment from it when it is the common practice. Adding nails to the clogs' soles is similar to adding laces to shoes, as is mentioned in Fath al-Qadeer69 . The [author of] AlFaawaa al-Bazzaziyah mentions that it is permissible to buy worn out clothes or shoes and to stipulate that the seller patches the torn clothes and mends the worn out shoes…Here we find that the condition which is stipulated in accordance with the prevailing customs ('urf) is similar to the valid condition which is legally established." 70

Evidence furnished in Support of these Opinions 1. Evidence advanced by those who maintain that both the contract and the condition are null and void

First Evidence 'Aa'ishah (may Allah be pleased with her) said, "Bareerah came to me and said, 'My people (i.e. masters) have written the contract for my emancipation for nine awaaq71 [of gold] to be paid in yearly instalments —one uqiyyah per year, so help me.'" 'Aa'ishah said [to her], "If your masters agree, I will pay them the whole sum provided the waalaa'72 will be for me." Bareerah went to her masters and told them about it, but they turn down the offer; so she left them while Allah's Messenger (may The complete title of the book is Al-Bahr ar-Raa’iq Sharh Kanz ad-Daqaa’iq, and its author is Zayn ad-deen Ibn Nujaym. (Translator's Note) 69 Fath al-Qadeer was written by Ibn al-Humaam. (Translator's Note) 70 See Nashr al-'Arf Fee Binaa' Ba'dh al-Ahkaam 'Alaa al-'Urf, 2/141. 71 Awaaq (sing. uqiyyah) is equal to 128 grams, and may be less or more according to different countries. (Translator's Note) 72 Walaa' (Literally 'proximity, kin, friendship') is a peculiar relationship voluntarily established and which confers a right of inheritance on one or both parties connected. It is of two kinds: 1. Walaa' al-'Ataaqah: Relationship between a master and a manumitted slave, in which the former inherits any property the latterc may acquire after emancipation. 2. Walaa' al-Muwwalaat: The connection arising out of mutual friendship between a Muslim and a convert. (Translator's Note) 68

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Allah's peace and blessings be upon him) was sitting. She said to him, "I presented the offer to them, but they refused unless the waalaa' would be for them." When the Prophet heard that and 'Aa'ishah told him about it, he said to 'Aaishah, "Buy Bareerah and let them stipulate that her waalaa' will be for them, as the waalaa' is for the manumitter." 'Aa'ishah did so. After that Allah's Messenger (may Allah's peace and blessings be upon him) got up amidst the people, glorified and praised Allah and said, "What is wrong with some people who stipulate things which are not in Allah's Laws? Any condition which is not in Allah's Book is invalid even if there were a hundred such conditions. Allah's rules are the most valid and Allah's conditions are the most solid. The walaa' is for the person who manumits [the slave]." 73 This hadeeth, proponents of this opinion maintain, clearly indicates that both the contract and the condition are invalid for the following two reasons: a. Commenting on the Prophet's statement "Any condition which is not in Allah's Laws is invalid", Ibn Hazm (may Allah have mercy on him) writes, "This refers to any condition which is not mentioned in the Book of Allah the Almighty or in the Sunnah of His Messenger (may Allah's peace and blessings be upon him). Indeed, anything which the Prophet (may Allah's peace and blessings be upon him) specified is in the Book of Allah the Almighty; he specified seven valid conditions and apart from these, everything else is invalid, for they are not mentioned in the Book of Allah." 74 Ibn Hazm (may Allah have mercy on him) also writes, "This report is very clear on this issue and leaves no room for ambiguity. Given that all conditions are invalid except for the ones we have mentioned, any contract, be it a sale contract or otherwise, is undoubtedly invalid if it includes an invalid condition, for it is concluded on the premise that the contract will not be valid unless the condition is valid. As long as the condition is not valid, that which is concluded (i.e. the contract) is invalid because it is based on the premise that it will not be valid unless

73 74

Reported by Al-Bukhaaree, hadeeth no. 2023, and Muslim, hadeeth no. 2763 See Ibn Hazm, AlMuhallaa, 7/319-320.

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that which is invalid (i.e. the condition) is valid." 75 He further says, "The condition is not valid anyway; therefore, that which is concluded (i.e. the contract) is invalid because it is based on the premise that it will not be valid unless that which is invalid (i.e. the condition) is valid."76 This evidence and argument was refuted as follows:  It contradicts the practice of the Prophet's companions (may Allah be pleased with them). Al-Bukhaaree writes in his Saheeh in an assertive manner, "Ibn 'Umar or 'Umar said, 'Any condition which is against Allah's Laws is invalid even if one stipulates a hundred such conditions.'77 'Umar and [his son] Ibn 'Umar interpreted this hadeeth thus, 'Any condition which is against Allah's Laws' and not 'any condition which is not in Allah's Book', as the hadeeth states, and there is a clear difference between the two statements.  Even though there are certain conditions in the sale contract which are not mentioned in the Book of Allah, scholars are unanimously agreed that the sale contract is deemed valid as long as the conditions are valid. These conditions include, among other things, stipulating deferred payment in instalments and stipulating certain characteristics in the tangible asset of the transaction (mabee'). In fact, such a sale transaction is by no means void, as is unanimously agreed by Muslim scholars even though such conditions are not mentioned in the Qur'an. Ibn Khuzaymah (may Allah have mercy on him) comments on this statement thus: "…not in the Book of Allah" means not approved by Allah's Laws. It does not mean that any condition that is not mentioned by name in the Book of Allah is invalid, for one of two contracting parties may stipulate a guarantor in the sale contract, which is undoubtedly a valid condition…" 78  The Prophet's next statement, namely, "Allah's rules are the most valid and Allah's conditions are the most solid", would be more appropriate to cite as evidence if the condition stipulated was claimed to Ibid., 7/320. Ibid., 7/320. 77 See Saheeh al-Bukhaaree, Chapter on Al-Mukaatab (i.e. the slave who is given the writing of emancipation for a certain sum) and Fath al-Baaree, 5/443. 78 See Ibn Hajar, Fath al-Baaree, 5/235. 75 76

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contravenes Allah's Book and His conditions…In fact, the stipulated which contravenes Allah's Book is undoubtedly invalid, for the truth is in the judgment of Allah and His Book. However, if there is no categorical proof in the Qur'an as to the permissibility of the same stipulation and stipulated and remains silent on the issue, then we cannot say that they contravene Allah's Book and conditions. Hence, the statement "Allah's rules are the most valid and Allah's conditions are the most solid" is not appropriate to cite as proof in this regard. 79 In fact, the claim that the statement 'any condition which is not in Allah's Book' includes general and specific conditions is not true, for Allah's Book clearly mentions that conditions are generally permissible and urges the believers to honour them, as evidenced by the verses, "O you who believe! Fulfil [all] obligations" 80 and "fulfil the Covenant of Allah"81 , in addition to other verses which generally point to the obligation of honouring one's agreements and solemnly promising to fulfil them.82 b. Proponents of this view also maintain that the Prophet's statement 'any condition which is not in Allah's Book' means any condition w hich is not in the Qur'an or the Prophetic reports (hadeeth), nor is supported by the unanimous agreement of Muslim scholars or analogical reasoning, because all these are included in the Book of Allah and His judgments.83 Imaam An-Nawawee writes about this hadeeth, "It is quite explicit as to the invalidity of any condition which has no basis in the Book of Allah the Almighty." 84 The last point in the previous response was cited as a refutation of this argument.

See Ibn Taymiyyah, Majmoo' al-Fataawaa, complied by Ibn Qaasim, 29/247; and AlQawaa'id an-Nooraaniyah, p. 230. 80 Surat al-Maa'idah, 5:1, 81 Surat al-An'aam, 6:152. 82 See Al-Qawaa'id an-Nooraaniyah, pp. 214 and 230. 83 Ibid., p. 209. 84 See An-Nawawee, Al-Minhaaj, 10/142, which is an explanation and commentary on the Prophetic reports mentioned in Saheeh Muslim. 79

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Second Evidence Ibn Hazm (may Allah have mercy on him) writes, "Any condition which is stipulated in a sale contract or otherwise is without doubt one of these three conditions: Either (1) to render a certain act not required by the contract permissible85 , or (2) oblige the other party to do a certain act86 or (3) prevent one [of the contracting parties]from benefiting from something87 . This can be done through one's body or wealth, and all of this is strictly unlawful, as evidenced by the Prophetic report in which the Prophet (may Allah's peace and blessings be upon him) said, "Your blood (i.e. lives), your property, your honour and your skins (i.e. bodies) are sacred to one another." 88 Regarding the prevention of someone from doing something, Allah the Almighty says, "O Prophet! Why do you hold forbidden that which Allah has made lawful to you…?" 89 . Therefore, all conditions are invalid except those which have been made valid and permissible by textual evidence from the Qur'an or the Sunnah."90 The following responses were made in refutation of this evidence and argument: a. As regards Ibn Hazm's statement, "to render a certain act not required by the contract permissible", if he means it is not required according to the terms of the contract, nor is it considered complementary to it, then it is valid; and those who hold the view that such a condition is valid do not deny this. However, if he means that if it is not necessary according to the terms of the contract, it is not permissible to stipulate such a condition,

An example of this is when the seller stipulates that he will benefit from the sold asset for a certain period of time. 86 An example of this is when the buyer stipulates that the seller must do something fo r him, such as carrying the wood he has sold or making a shirt from the piece of cloth he has sold him. 87 An example of this is when the seller stipulates that buyer must not benefit from the asset he has bought for a certain period of time. 88 Reported by Al-Bukhaaree on the authority of 'Abdur-Rahmaan ibn Abu Bakrah from his father, Kitaab al-Fitan, hadeeth no. 6551. 89 Surat at-Tahreem, 66:1. 90 See Ibn Hazm, Al-Muhallaa, 7/324. 85

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then such a view is not acceptable; furthermore, no cogent evidence which prevents such an act has been furnished in this respect. The textual evidence "Your blood (i.e. lives), your property, your honour and your skins (i.e. bodies) are sacred to one another" which they quote in support of the impermissibility of the conditions required by the contract is to be carefully reconsidered. For the conditions stipulated by one or both contracting parties actually constitute a known, lawful benefit which does not contravene the contract requirement. Indeed, the stipulation of such a condition with the contracting parties' consent and without any coercion whatsoever is by no means unlawful, because they both accept it of their own free will. In addition, the Prophet (may Allah's peace and blessings be upon him) said in this regard, "It is forbidden to take anything from a Muslim's wealth unless he consents to it of his own free will." 91 b. As for his assertion that it is not permissible to prevent the buyer from something (as in the case where the seller benefits from the sold asset before he delivers it to the buyer) as evidenced by the verse, "O Prophet! Why do you hold forbidden that which Allah has made lawful to you…" 92 , this can be refuted as follows:  There is nothing here that indicates permissibility or impermissibility. What actually happens here is that the sold asset is kept from the buyer after the conclusion of the contract for a while. In fact, the Sunnah approves such a practice, and this was the practice of the prophet's companions as well as that of the leading scholars who followed them. This point will be made much clearer later on.  The purpose of stipulating conditions is to obligate someone to do something which was not stated as a necessary act in the contract as long as it is not unlawful. Thus, a valid condition renders a nonobligatory act required, for conditions make it incumbent on the contracting parties to do things which were not originally stated to be otherwise. Similarly, they make impermissible allowable; they also make those acts which were not originally stated to be forbidden lawful. By the same token, if a certain characteristic is stipulated to exist in the 91 92

Reported by Al-Bayhaqee, As-Sunan al-Kubraa, hadeeth no. 11325. Surat at-Tahreem, 66:1.

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tangible asset of the transaction (mabee'), or a certain pawning (rahn)93 is stipulated, or if a woman stipulates an increase in her "dower of equivalence" (mahr al-mithl)94 , all these conditions become binding, permissible, or forbidden depending of the condition stipulated.95  Obliging oneself to honour a certain agreement or condition by no means amount to changing what Allah has legislated unless one has obliged oneself to do something which the Sharee'ah declares forbidden by, for instance, rendering lawful what the Sharee'ah considers unlawful or vice versa. The Qur'an says in this connection, "O you who believe! Fulfil [all] obligations. Lawful to you [for food] are all beasts of cattle with exceptions named; but animals of the chase are forbidden while you are in the sacred Precincts or in the state of pilgrimage. For Allah commands according to His Will and Plan." 96 These conditions do not make lawful things prohibited, nor do they make forbidden things permissible.97 Third Evidence Two Prophetic traditions are cited in this respect: 1. ' Amr ibn Shu'ayb narrated from his father, from his grandfather, that the Messenger of Allah (may Allah bless him and grant him peace) forbade any sale [contract] concluded with a condition." 98 Rahn (pawning, pledging) is a legal term which signifies the detention of something on account of a claim which may be answered by means of that thing, as in the case of debt. (Translator's Note) 94 Mahr al-mithl is calculated according to the amount received by other females in the bride’s family upon their marriage, in addition to consideration of the bride’s beauty, age and virginity.(Translator's Note) 95 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/1148. 96 Surat al-Maa'idah, 5:1. 97 See Al-Gharar Wa Atharuhu Fee al-'Uqood¸p. 18. 98 Reported by Al-Haakim, Ma'rifat 'Uloom al-Hadeeth, p. 128; At-Tabaraanee, Al-Awsat, Majma' al-Bahrayn, 3/367; and Ibn Hazm, Al-Muhallaa. They all related it from 'Abdullaah ibn Ayyoob al-Gharbee ah-Dhareer who narrated it from Muhammad ibn Sulaymaan adh-Dhahlee from 'Abdul-Waarith ibn Sa'eed who said, "When I got to Makkah, I found Abu Haneefah, Ibn Abee Laylaa and Ibn Shibrimah. I Asked Abu Haneefah, "What do you say regarding someone who has sold something and stipulated a condition?" He replied, "Both the sale contract and the condition stipulated are invalid." When I asked Ibn Abee Laylaa the same question he replied, "The sale contract is permissible, but the condition is invalid." Then I went to Ibn 93

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2. 'Amr ibn Shu'ayb also narrated from his father, from his grandfather, that the Prophet (may Allah's peace and blessings be upon him) said, "It is not permissible to sell something on condition that the purchaser lends you something; you cannot sell what is not in your possession; and no profit is permissible unless possession has been taken of the goods."99 Those who hold this view maintain that in these two Prophetic traditions the Prophet (may Allah's peace and blessings be upon him) prohibits any sale contract which contains a condition; prohibition here implies that the condition is invalid. Exceptions include only that which the Sharee'ah permits, such as rahn100 , and that which the unanimous agreement of Muslim jurists asa well as sound, disciplined analogical reasoning permit ,such as deferment either in payment or in delivery. At-Tahhaawee comments on the second hadeeth thus: "If these conditions are stipulated in sale transactions, they render such transactions invalid." 101 As for the hadeeth in which the Prophet (may Shibrimah and asked him the same question, and he replied, "Both the sale contract and the condition stipulated are permissible." I said to myself, "Subhaanallaah (Glorified be Allah)! Three scholars from Iraq have expressed three different opinions regarding one single case!" Then I went to see Abu Haneenfah again and I informed him [of the different responses]. Abu Haneefah, said, "I do not know what they said, but 'Amr ibn Shu'ayb narrated to me from his father who narrated from his grandfather that the Prophet (may Allah's peace and blessings be upon him) forbade a sale and a condition. Thus the sale is invalid and so is the condition." (p.72) A similar report was narrated on the authority of Abu Ya'laa who said that when the prophet (may Allah's peace and blessings be upon him) sent him a certain place he forbade him to sell something on condition that the purchaser lent him something; that he could not sell what was not in his possession; and that he should not sell what he did not possess. See Al-Mataalib al'Aaliyah Bi Zawaa'id al-Masaaneed ath-Thamaaniyah, 2.96. 99 Reported by Abu Daawood in his Sunan, hadeeth no. 3504; At-Tirmidhee, Al-Jaami', hadeeth no. 1234; An-Nasaa'ee' Al-Mujtabaa, 7/288; Ibn Maajah, As-Sunan, hadeeth no. 2188; Ahmad, Al-Musnad, 2/174, 179 and 205; At-Tahhaawee, Sharh Ma'aanee alAathaar, 4/46-47; Ad-Daaraqutnee, 3/75; and Al-Bayhaqee, As-Sunan al-Kubraa, 5/243. They all reported it through this chain which is categorized as ' hasan' (good). AtTirmidhee said regarding it, "This hadeeth is hasan (good) and Saheeh (authentic)." 100 Rahn (pawning, pledging) is a legal term which signifies the detention of something on account of a claim which may be answered by means of that thing, as in the case of debt. (Translator's Note) 101 See At-Tahhaawee, Amushkil al-Aathaar, revised by Shu'ayb al-Arna'oot, 11/251.

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Allah's peace and blessings be upon him) said, "It is not permissible to have two conditions in one transaction", At-Tahaawee (may Allah have mercy on him) comments thus, "The sale contract in itself is a condition. Therefore, if he (i.e. the seller) stipulates another condition, this amounts to having two conditions in one single transaction. In fact, these are the two conditions which they (i.e. proponents of the view under study) believe the Prophet (may Allah's peace and blessings be upon him) describe as prohibited in the hadeeth." 102 After citing these two Prophetic traditions, Sheikh Zakariyyaa alAnsaaree also writes, "On the face of it, they (i.e. the Prophetic traditions) make every condition invalid; however, they have been interpreted to mean that stipulating an unclear condition is bound to lead to a dispute after the contract has been concluded 103 and thus contravene the objective and content of the contract. The condition only becomes valid when such results do not crop up. In fact, there is textual evidence as to the validity of certain conditions." 104 The following responses were made regarding this evidence and argument: The first hadeeth is classified [by hadeeth experts] as (1) "very weak", (2) is not known in books of hadeeth and (3) has two defects, namely 1. Its chain of narrators (isnaad) includes 'Abdullah ibn Ayyoob alGharbee adh-Dhareer, and Ad-Daaraqutnee said about it, "It is matrook 105 ".106

See Ma'aanee al-Aathaar, 4/47. An example of this is when the buyer stipulates that the seller must carry the item he has purchased from him to his flat which is located in a certain area. A dispute may arise when the buyer tells the seller that he has meant he must carry it to the doorstep located on the fifth floor, while the seller understands his statement to mean simply where he lives, without expecting to take the sold item up the stairs as there is no lift in the building where the buyer lives. (Translator's Note) 104 See Sharh al-Bahjah, 2/427; and Al-Majmoo' Sharh al-Muhadh-dhab, 9/466. 105 Matrook (abandoned) refers to a hadeeth which is reported by a transmitter who is suspected of falsehood or is openly wicked in speech and action or is guilty of carelessness or frequent wrong notions. (Translator's Note) 106 See Ad-Dahabee, Meezaan al-I'tidaal Fee Naqdi ar-Rijaal, 4/64; and Ad-Dahabee, AlMughnee Fee Adh-Dhu'afaa', 1/332. 102 103

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 Muhammad ibn Sulaymaan adh-Dhahlee, who is also in the chain of narrators, is classified [by hadeeth experts] as 'majhool' (unknown) and does not have a biography to detail his identity. Imaam Ahmad classified him as 'munkar'107 and Imaam An-Nawawee categorised him as 'ghareeb'108 .109 Ibn Taymiyyah (may Allah have mercy on him) said about him, "Some jurists have mentioned him in their books, but he is not mentioned in hadeeth books. Imaam Ahmad as well as other scholars have also classified him as 'munkar' (rejected, denounced) and have mentioned that he is not known and that his narrations contradict authentic Prophetic reports." 110 The second hadeeth, however, is authentic 111 , and the Prophet's statement "There should be no two conditions in one sale [transaction] clearly opposes their claim that one condition is not permissible in a single sale transaction. Ibn Qudaamah (may Allah have mercy on him) writes, "When someone said to Abu 'Abdullah 112 , 'These people view the stipulation of a condition in the sale contract to be disliked (makrooh)' he shook his hands [in disapproval] and said, 'There is no harm in stipulating one condition in a sale transaction, for the Prophet (may Allah's peace and blessings be upon him) only forbade stipulating two conditions in a single sale transaction.' In fact, the evidence contained in the hadeeth narrated by Jaabir (may Allah be pleased with him) who said that the Prophet (may Allah's peace and blessings be upon him) had

Munkar (denounced) is a hadeeth which is reported by a weak narrator, and whose narration goes against another authentic hadeeth. (Translator's Note) 108 Ghareeb (rare) refers to a hadeeth which is narrated by a single person at one point in the chain of transmitters. (Translators Note) 109 See Al-Majmoo' Sharh al-Muhadh-dhab, 9/453. 110 See Majmoo' al-Fataawaa, 29/132. 111 It was classifies as 'saheeh' (authentic) by Al-Haakim in Al-Mustadrak, 2/17, Ibn Taymiyyah in Al-Fataawaa al-Kubraa, 6/177 and Ibn al-Qayyim in I'laam alMuwwaqqi'een, 3/119. 112 As a title of respect, Arabs always name someone as 'the father or mother of ' a certain person. For example, Abu (father of) Muhammad and Umm (mother of) Sulaym. Here Abu Qudaamah uses the words 'Abu (father of) Abdullaah to refer to Imaam Ahmad. (translator's Note) 107

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bought a camel from him and he (i.e. Jaabir) stipulated riding it to [his house] in Madeenah 113 is in favour of stipulating a condition. 114 Furthermore, Muslim jurists have furnished different interpretations as to the exact meaning of the two conditions which the Prophet (may Allah's peace and blessings be upon him) consider impermissible, as follows: a. They are valid conditions which do not form part of the requirement of the contract, an example of which is to buy a piece of cloth and stipulate that the seller has to shorten it or to make a certain garment from it. b. The seller says to the buyer, "I will sell you this commodity on condition that I give you SR 10 cash now and SR 20 later on." c. The seller says to the buyer, "I will sell you my house on condition that you sell me such-and-such a commodity." This is the case of concluding a contract within another contract. d. They are invalid conditions, an example of which is when the seller stipulates that the buyer must not sell or donate the commodity he has purchased. e. The seller may say to the buyer, "Take this commodity for SR 20 to be paid later on, and I will take it back from you in cash." This is the case of the so-called 'eenah and 'aks al-'eenah 115 .116

The text of the hadeeth is in Al-Bukhaare and reads: Jaabir narrated, "While I was riding a [slow] and tired camel, the Prophet passed by, beat it and prayed for Allah's Blessings for it. The camel became so fast as it had never been before. The Prophet then said, 'Sell it to me for one uqiyyah [of gold].' I said, 'No.' He again said, 'Sell it to me for one uqiyyah [of gold]." I sold it and stipulated that I should ride it to my house. When we reached [Madeenah], I took that camel to the Prophet and he gave me its price. I returned home but he sent for me [and when I went to him] he said, 'I will not take your camel. Take your camel as a gift for you.'" (Translator's Note) 114 Ibn Qudaamah, Al-Mughnee, 6/322. 115 'Eenah (sale and buy back agreement), as has been defined by the majority of Muslim scholars, as selling a commodity to another person at a price paid in advance and then purchasing it from him at far less cash than the price offered to buy it." In fact, such a transaction is forbidden and is legally invalid. 'Aks al-'eenah (reversal of sell and buy back agreement), however, means selling a commodity for a price that is paid in advance and then purchasing it at a far higher price on credit." (Translator's Note) 113

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The most accurate view regarding the interpretation of the conditions mentioned in the hadeeth (Allah knows best) is the one whose proponents argue that the meaning of two conditions is explained by the hadeeth which prohibits the conclusion of two contracts in one single contract, which is generally termed 'eenah.117 This was the view adopted and favoured by Ibn Taymiyyah 118 and his disciple Ibn al-Qayyim119 (may Allah have mercy on both of them), and the reason behind such prohibition is that it involves a compound of an interest (ribaa)-based stratagem. Ibn al-Qayyim (may Allah have mercy on him) writes in this regard, "This, in fact, is what is called 'two conditions in one sale [transaction]; for the word condition (Arabic shart) is used to refer to the contract itself as both contracting parties have entered into an agreement on condition that they both honour its terms. Honouring the terms of the contract is the so-called mashroot (i.e. that which is stipulated); in fact, the shart (stipulation) is often used to refer to that which is stipulated (mashroot). Examples [in Arabic} include, among other things, dharb (beating) is used to refer to the madhroob (the one who is beaten), halq (shaving) is used to refer to the mahlooq (the thing that is shaven) and naskh (abrogation) is used to refer to the mansookh (the thing that is abrogated). Thus, two conditions are rather similar to two transactions. By the same token, two conditions in a sale [transaction] refer to two transactions in one transaction…" 120

116See

Al-Khattaabee, Ma'aalim as-Sunan, 3/121; Ibn Qudaamah, Al-Mughnee, 6/322; Ibn al-Qayyim, Tahdheeb as-Sunan, 5/148; Ibn Qutaybah, Ghareeb al-Hadeeth, 1/18; and Ibn al-Atheer, An-Nihaayah Fee Ghareeb al-Hadeeth, 2/459. 117 Ibn Qutaybah, Ghareeb al-Hadeeth, 1/18; Ad-Durar as-Saniyah, compiled by 'AbdurRahmaan ibn Qaasim, 6/38; and Ibn al-Qayyim, Tahdheeb as-Sunan, 5/106 and 148. 118 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 28/74 and 29/448. 119 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/119 and Tahdheeb as-Sunan, 5/106, 148 and 149. 120 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/119; and Tahdheeb as-Sunan, 6/149, 148 and 149.

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Fourth Evidence 'Abdur-Rahmaan ibn 'Abdullaah ibn 'Utbah 121 narrated from Muhammad ibn 'Amr ibn al-Haarith ibn Abee Dhiraar122 that 'Umar ibn al-Khattaab (may Allah be pleased with him) gave the wife of 'Abdullah ibn Mas'ood a slave-girl as her portion of the one-fifth of the spoils of war to be distributed among the poor. She sold her to [her husband] 'Abdullah ibn Mas'ood for one thousand dirhams and stipulated that the slave-girl would serve her. When the news reached 'Umar ibn alKhattab, he addressed 'Abdullah ibn Mas'ood thus, "Abu 'AbdurRahmaan, you purchased your wife's slave-girl and she stipulated that she would serve her?" "Yes" came the answer. "Don't buy her then," 'Umar said, "for she (i.e. your wife) stipulated a condition [in the transaction]." 123 At-Tahaawee (may Allah have mercy on him) writes in this connection, "'Umar ibn al-Khattaab (may Allah be pleased with him) considered the sale agreement concluded by 'Abdullaah [ibn Mas'ood] invalid, and 'Abdullaah concurred with him; however, if he had known that he was wrong in his judgment, he would have disagreed with him. In fact, 'Umar did not issue a binding judgment but rather a legal verdict (fatwa)." 124 His full name is Ibn 'Utbah ibn 'Abdullah ibn Mas'ood from Koofah, Iraq, known as Al-Mas'oodee. Ibn Sa'd writes about him in At-tabaqqat, "He was a reliable hadeeth memorizer who had memorised numerous Prophetic traditions but his memory got muddled up before his demise." Ibn Hibbaan also writes about him, "His reports got muddled up [before he passed away], and thus they were rejected [by hadeeth experts]…he passed away in 160 AH. " See Tahdheeb at-Tahdheeb, 2/523-524. 122 This is his full name, as Ibn Hibban writes about him in his book Ath-Thiqaat, 7/368. For further details, see Ash-Shawkaanee, Al-Fawaa;id al-Majmoo'ah Fee al-Ahaadeeth alMawdhoo'ah, revised by Sheikh 'Abdur-Rahmaan al-Ma'lamee, p. 168. 123 Reported by Al-Bayhaqee, As-Sunan al-Kubraa, and said, "It was reported by AlQaasim on the authority of Ibn 'Abdur-Rahmaan, and it is classified as mursal. (In the terminology of scholars of hadeeth, a hadeeth which is graded as 'mursal' is one which transmitted by a successor (taabi'ee) from the Prophet (may Allah's peace and blessings be upon him) directly, thus dropping the companion (sahaabee) from the chain of transmitters. [Translator's Note]) 124 See Sharh Ma'aanee al-Aathaar, 4/47; Sharh Mushkil al-Aathaar, 11/236; Jamaal-ud-Deen al-Manbajee, Al-Lubaab Fee al-jam' Bayna as-Sunnati Wal-Kitaab, revised by MuhammadFadhl Muraad, 22/501; and Al-Baajee al-Maalikee, Al-Muntaqaa, 4/211. 121

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The following responses have been made in refutation of this evidence: a. This report is categorised by hadeeth experts as 'weak' for the following defects:  Its chain of transmitters (isnaad) includes of 'Abdur-Rahmaan ibn 'Abdullah ibn 'Utbah ibn Mas'ood whose narrations are classified as 'good' (hasan) but his memory was muddled up towards the end of his life. The earlier scholars reported sound reports from him, but the narrations reported from him by the later ones are not classified as 'authentic' (saheeh)." 125  The chain of transmitters also includes Muhammad ibn 'Amr ibn al-Haarith whom only Ibn Hibbaan, as was his custom, documented and categorised as 'majhool' (unknown). 126  There is a missing link in the chain of transmitters of this report, for Muhammad ibn 'Amr ibn al-Haarith did not hear it from 'Umar ibn al-Khattaab (may Allah be pleased with him); in fact, he never heard anything from the Leader of the Faithful (i.e. 'Umar ibn al-Khattaab)." 127 b. The report that was authentically attributed to 'Umar ibn alKhattaab has actually a different wording. Besides the categorisation of Muhammad ibn 'Amr ibn al-Haarith by hadeeth experts as 'majhool' (unknown), hadeeth narrators narrated a similar hadeeth but with a different wording. In fact, the narration provided by the well-known reliable hadeeth transmitters is different from this one. What actually happened was that 'Abdur-Rahmaan ibn 'Abdullaah ibn 'Utbah ibn Mas'ood made a mistake and only reported its meaning. This narration was also reported, amongst others, by Shu'bah ibn al-Hajjaaj and Sufyaan ath-Thawree on the authority of Khaalid ibn Salamah who said, "I heard Muhammad ibn 'Amr ibn al-Haarith saying that Zaynab, 'Abdullaah ibn Mas'ood's wife, sold her slave-girl to 'Abdullaah [ibn Mas'ood] and stipulated the condition that she would serve her. When 'Umar was informed [of this incident], he said [to' Abdullaah], 'Don't See Tahdheeb at-Tahdheeb, 2/523-524; and Taqreeb at-Tahdheeb, report no. 3944, p. 586. See Ibn Hibbaan, Ath-Thiqaat, 7/368; Ibn Abee Haatim, Al-Jarh Wat-Ta'deel, 8/29; and Al-Bukhaaree, At-Taareekh al-Kabeer, 1/190. 127 Ibid. 125 126

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purchase her as long as there is a stipulation [attached to the agreement].'" 128 This is the wording narrated by Ath-Thawree on the authority of Khaalid ibn Salamah. Shu'bah's narration reads, "Let him not buy her as long as someone has stipulated a condition [in the sale agreement]." 129 In fact, this wording is considered the most authentic, as it is supported by another narration reported by Imaam Maalik in his Muwwatta' on the authority of Az-Zuhree from 'Ubaydullaah ibn 'Abdur-Rahmaan ibn 'Utbah ibn Mas'ood that 'Abdullaah ibn Mas'ood (may Allah be pleased with him) purchased a slave-girl from his wife Zaynab Ath-Thaqafiyyah. She made a condition to him that if he bought her, she could always buy her back for the price that he had paid. 'Abdullaah ibn Mas'ood asked 'Umar ibn al-Khattaab about that 130 and 'Umar replied, "Do not approach her (i.e. don't have intercourse with her) while anyone has a condition concerning her over you." 131 There is a similar report to this effect narrated on the authority of 'Abdullaah ibn 'Umar who said, "A man should not have intercourse with a slave-girl except one whom, if he wished, he could sell, if he wished, he could give away, if he wished, he could keep, if he wished,

Reported by Al-Bayhaqee in As-Sunan al-Kubraa, Book of Sale, 5/236; and AtTahhaawee, Sharh Ma'aanee al-Aathaar, 4/47. 129 This is the narration of Sufyaan ath-Thawree in Al-Bayhaqee's book and that of Shu'bah in At-Tahhaawee's book, as has been mentioned above. 130 Al-Baajee writes in Al-Muntaqaa (4/211), "Despite the fact that 'Abdullaah ibn Mas'ood (may Allah be pleased with him) was a scholar himself, he sought 'Umar's opinion in this respect. This can be attributed to the following reasons: (1) He might be aware of the ruling regarding this agreement and sought to follow 'Umar's view in this respect, according to those who opine that a knowledgeable person may adopt the opinion of someone with more knowledge; (2) It may be that he wanted him to direct him to the way he understood the incident and stated his opinion thereof so that 'Abdullaah ibn Mas'ood would know its ruling supported with the evidence to which Allah would guide him; (3) It may also be that he wanted to ask his opinion despite his prior knowledge regarding this transaction so that he would know whether or not he would agree or disagree with him." 131 Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616; and Al-Bayhaqee in As-Sunan Al-Kubraa, 5/236. 128

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he could do with her what he wanted." 132 Prohibition here applies to having intercourse with the salve-girl and not the act of buying her. It is for this reason that Imaam Ahmad ibn Hanbal (may Allah have mercy upon him) said, after he heard 'Umar's saying, 'Do not go near her while anyone has a condition concerning her over you', "The sale [transaction] is permissible, but do not have intercourse with her because of the condition stipulated; he did not, however, say that the sale was invalid." 133 Commenting on this, Ibn Qudaamah writes, "He (i.e. Imaam Ahmad) interpreted the report based on its literal sense; in fact, 'Umar and Ibn Mas'ood agreed on the validity of the transaction."134 Abu 'Umar ibn 'Abd al-Barr (may Allah have mercy upon him) also writes, "'Umar's saying to ['Abdullaah] ibn Mas'ood, 'Do not go near her' indicates that he approved the sale contract concluded but he forbade him to have intercourse with her. This is the most obvious view in this respect." 135 The reason for prohibiting him from having intercourse with her despite the validity of the contract is because the slave-girl is not considered to be totally owned, for this depends on the condition stipulated by the seller. The ruling of this case is similar to that in which a slave-girl is owned by two persons and thus none of is allowed to have intercourse with her. That is why Ibn 'Umar (may Allah be pleased with him said, "Intercourse [with a slave-girl] is not allowed unless [the master] sells her, donates her or keeps her for himself; and no condition should be stipulated in this regard."136

Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616. See Ibn Qudaamah, Al-Mughnee, 6/171. 134 Ibid. 135 Ibn 'Abd al-Barr, Al-Istidhkaar, 19/68; Ibn 'Abd al-Barr (may Allah have mercy upon him) narrated a similar report from Maalik and stated that prohibition in the report applies only in the case of sexual intercourse, and Al-Baajee supported this view in his commentary on Maalik's Al-Muwwatta'. See Al-Muntaqaa, 4/211. 136 Reported by At-Tahhaawee in Sharh Ma'aanee al-Aathaar, 4/47, and its chain of transmitters (isnaad)is classified as 'authentic' (saheeh); for he reportedit on the authority of 'Ubaydullaah ibn 'Umar al-Amree from Naafi' from Ibn 'Umar, and this chain is considered to be one of the conditions set by Al -Bukhaaree and Muslim in identifying authentic reports. 132 133

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Fifth Evidence They contend that the seller may not be happy with the sale transaction until the buyer observes the condition he has stipulated; and it is because of this condition that he agrees to transfer his property to him and does not consent to do so without such a condition. If the buyer does not meet this condition, the seller will not give him what he has bought contentedly. Therefore, such a sale contract is to be revoked due to the invalidity of the condition which prevents the buyer from freely disposing of what he has bought, just like any owner freely disposes of whatever he possesses.137 In refutation of this evidence, it has been argued that one of the two contracting parties may undoubtedly be not be happy with the sale contract concluded with the other party. Besides, the party on whom the condition is imposed as an obligation is not supposed to dispose of the sold item if he does not meet the condition stipulated by the other party; otherwise, he would be disposing of part of the other' party's property. However, the statement that such a sale contract is to be revoked due to the invalidity of the condition which prevents the buyer from freely disposing of what he has bought is rather contentious. In reply to this particular point, it has been contended that if the condition does not contravene the objective of the contract or that of the Lawgiver by making the lawful impermissible or the unlawful permissible, then such a condition is by no means invalid and thus does not render the sale transaction null and void. In addition, the invalidity of the condition does not always necessitate that the contract be invalid. In fact, the contract does not become void by reason of the invalidity of the stipulated condition unless such a condition contravenes the objective of the contract…" 138 "For if the contract has an objective which is intended in all its forms and a condition is stipulated which contravenes the intended purpose, then two things which are contradictory are combined, in that the purpose of the contract is confirmed and disaffirmed at the same time, which leads to nothing. In fact, scholars are unanimously agreed that 137 138

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such a condition is invalid, and we hold that it renders the contract null and void." 139 Sixth Evidence "Because such a condition contravenes the contract requirement and does not serve its purpose, it cannot be on the same footing as the contract; for the contract requires that the buyer should freely dispose of the sold item, while the condition stipulated in a contract and serves the interest of the contracting parties prevents one of the parties from disposing of the tangible asset of the transaction or obliges him to act in a certain way. In fact, such a condition contravenes the purpose of the contract, is invalid and makes the contract void." 140 In response to this justification, the following argument by Ibn Taymiyyah has been cited: "Indeed, any contract has two states: an absolute state and a restricted state, and there is a difference between the absolute contract and the absolute intent of the contract. Therefore, if it is said that such-and-such a condition contravenes the contract requirement, then such a condition does not affect the contract if it is the requirement of the absolute contract that is meant, as is the case with any extra condition. If, however, what is meant is that the condition contravenes the requirement of the absolute and the restricted contract, then evidence is required in this case. In fact, such a claim can only be right if the condition contravenes the contract requirement 141 , such as stipulating divorce in a marriage contract and the dissolution of marriage in the same contract. Nonetheless, if what is stipulated constitutes the objective of the contract, we cannot claim that it 139Ibid.,

29/156. See Al-Mabsoot, 13/14; Sharh Al-Kharshee 'Alaa MujhtasarKhaleel, 5/80' Haashiyat asSaawee 'Alaa ash-Sharh as-Sagheer, 3/102; Al-'Umraanee, Al-Bayaan Fee Madh-hab alImaam ash-Shaafi'ee, 5/132; and Al-Mughnee, 6/171. 141 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/155. In addition to this, the possibility that some conditions are not required by the contract does provide strong grounds for claiming that such conditions are invalid; for this is not a statement made by Allah, His Messenger, the Prophet's companions or any of the leading jurists, but rather a statement which was made by a group of people. The right course to adopt here is to see if any condition which is not required by the contract goes against the teachings of the Qur'an and the Sunnah, and whether it makes the lawful impermissible or the unlawful permissible. For further details, see Majmoo' al-Fataawaa, 30/198. 140

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contravenes the objective of the contract. This is the correct view in this respect as evidenced by the Qur'an, the Sunnah, unanimous agreement of Muslim jurists, istishaab142 , and the absence of textual evidence which contradicts this view. "143 Seventh Evidence They argue that stipulating such a condition which constitutes a certain benefit to one of the contracting parties or to the object of the contract (ma'qood 'alayhi) if it is a human being entails an excess stipulated as an obligatory condition on one of the parties without any return; and any an excess stipulated as an obligatory condition on one of the parties without any return is tantamount to ribaa (usury). In fact, ribaa or a suspicion of it definitely renders the contract void, and thus a suspicion of ribaa renders the sale contract void just as ribaa does.144 Ibn 'Aabideen (may Allah have mercy on him) explains this point thus, "Because ribaa is the excess stipulated as an obligatory condition on one of the parties without any return and the invalid conditions constitute an excess which is not required by the contract or serve its purpose, they constitute an excess without any return, which is ribaa."145 In confutation of this argument, it has been confuted that the stipulated part in the contract is just like stipulating something additional to the absolute contract or stipulating a deduction therefrom; and thus it does not constitute an excess without any return, as the proponents of the first view wrongly claim; for this addition to the Istishaab literary means courtship or companionship. In Usool al-Fiqh (principles of Islamic jurisprudence), istishaab means presumption of existence or non-existence of facts. It can be used in the absence of other proofs (dalaa'il: sing. daleel). In fact, it has been validated by a large member of scholars, though not all. In its positive sense, istishaab presumes continuation of a fact (marriage or a transfer of ownership) until the contrary is proved. However, the continuation of a fact will not be proved if the contract is of a temporary nature (for instance, ijaarah, or lease). Istishaab also presumes continuation of negative. Because of its basis in probability, istishaab is not a strong ground for the deduction of the rules of Sharee'ah. Hence, when it comes in conflict with another proof (daleel), the latter takes priority. (Translator's Note) 143 See Al-Qawaa'id an-Nooraaniyah, p. 214. 144 See Al-Kamaal-ud-Deen Ibn al-Humaam, Fath al-Qadeer, 6/'446; and Al-Kaasaanee, Badaa'i' as-Sanaa'i', 5/170. 145 See Haashiyat Ibn 'Aabideen, 5/21. 142

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absolute contract is actually part of the object of the contract (ma'qood 'alayhi), hence the stipulation of such a condition. Indeed, the buyer has only given his money to the seller and agreed to conclude such a transaction because of his awareness of such a condition which constitutes part of the object of the contract (ma'qood 'alayhi). Furthermore, their claim that the condition which constitutes a certain benefit to one of the contracting parties or to the object of the contract (ma'qood 'alayhi) if it is a human being constitutes an excess without any return as it is not required by the contract or suited to it is highly questionable. Besides, their claim that any excess to the contract requirement renders the contract invalid is unfounded, for Muslim jurists are agreed as to the permissibility of stipulating deferment either in payment or in delivery, which is not generally required by the contract and constitutes a benefit to one of the contracting parties. Just as such a condition serves the interest of the contract itself, the conditions which constitute a benefit to one of the contracting parties serve the interest of the party that stipulates it. Eighth Evidence They also argue that the condition stipulated by the buyer in the tasreef contract — namely that the tangible asset of the transaction (mabee') will be returned to the seller if it is not merchandised or does not sell well—leads to some kind of ignorance and uncertainty, as it is not known or certain when the tangible asset of the transaction (mabee') will be returned or when the contract will be revoked. They also mention that the Prophet (may Allah's peace and blessings be upon him) has forbidden gharar146 ,147 and thus any contract which is concluded and contains an uncertain condition becomes void due to the invalidity of such a condition.148 This argument was refuted thus: There is no doubt that ignorance and uncertainty (jahaalah) which is unknown is one of the grounds for This is a transaction containing elements of fraud on the part of one party, thus disadvantaging the other party. (Translator's Note) 147 See Saheeh Muslim, Book of Sale, hadeeth no. 2783. 148 See At-Tahhaawee, Sharh al-Ma'aanee, 4/48. 146

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rendering the contract invalid. However, ambiguity and uncertainty which result in the buyer's stipulation that he will return the tangible asset of the transaction (mabee') to the seller if it is not merchandised or does not sell well does not constitute an excessive form of uncertainty and ambiguity. In fact, such uncertianty is deemed forgivable, as it is bound to lead to certainty and clarity. … and the majority of those who conclude sale contracts with such a condition — whether it has been expressly stipulated or is something people are accustomed to in their dealings — impose this condition when buying fresh foods and other food items with a limited validity period normally not exceeding twenty days in most cases. In fact, such ambiguity and uncertainty is rather slight and is more often than not bound to be known. Indeed, the Maalikite scholars consider a sale contract concluded with an option which gives one of the two parties to the contract a right to cancel the sale within a stipulated time — such as until harvest time or datepicking time — absolutely valid149 . This is also one of the views of the Hanbalites and is the adopted and preferred view of ibn Taymiyyah (may Allah have mercy upon them all). 150

Evidence furnished by those who maintain that the Contract is Valid but the Condition is void

Proponents of the second view have furnished some of the evidence brought forward by those who hold the first opinion. However, they differ with them in that the stipulated condition is invalid but it does not render the contract null and void. In support of their view, they cite the following proofs: First Evidence 'Aa'ishah (may Allah be pleased with her) said, "Bareerah came to me and said, 'My people (i.e. masters) have written the contract for my emancipation for nine awaaq151 [of gold] to be paid in yearly instalments —one uqiyyah per year, so help me.'" 'Aa'ishah said [to her], "If your See Al-Mudawwanah, 3/196; At-Taaj Wal-Ikleel Li Mukhtasar Khaleel, 6/500-501; and AlMardaawee, Al-Insaaf, 5/99-100. 150 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/52. 151 Awaaq (sing. uqiyyah) is equal to 128 grams, and may be less or more according to different countries. (Translator's Note) 149

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masters agree, I will pay them the whole sum provided the waalaa'152 will be for me." Bareerah went to her masters and told them about it, but they turn down the offer; so she left them while Allah's Messenger (may Allah's peace and blessings be upon him) was sitting. She said to him, "I presented the offer to them, but they refused unless the waalaa' would be for them." When the Prophet heard that and 'Aa'ishah told him about it, he said to 'Aaishah, "Buy Bareerah and let them stipulate that her waalaa' will be for them, as the waalaa' is for the manumitter." 'Aa'ishah did so. After that Allah's Messenger (may Allah's peace and blessings be upon him) got up amidst the people, glorified and praised Allah and said, "What is wrong with some people who stipulate things which are not in Allah's Laws? Any condition which is not in Allah's Book is invalid even if there were a hundred such conditions. Allah's rules are the most valid and Allah's conditions are the most solid. The walaa' is for the person who manumits [the slave]." 153 They argue that the Prophet (may Allah's peace and blessings be upon him) declared in this hadeeth that the condition was invalid by saying, "What is wrong with some people who stipulate things which are not in Allah's Laws?" They go on to say that he permitted the manumission contract by saying, "Buy Bareerah and let them stipulate that her walaa' will be for them, as the walaa' is for the manumitter." Therefore, had the manumission contract been invalid, he would not have allowed Bareerah's manumission. 154

Walaa' (Literally 'proximity, kin, friendship') is a peculiar relationship voluntarily established and which confers a right of inheritance on one or both parties connected. It is of two kinds: 1. Walaa' al-'Ataaqah: Relationship between a master and a manumitted slave, in which the former inherits any property the latterc may acquire after emancipation. 2. Walaa' al-Muwwalaat: The connection arising out of mutual friendship between a Muslim and a convert. (Translator's Note) 153 Reported by Al-Bukhaaree, hadeeth no. 2023, and Muslim, hadeeth no. 2763 154 See Al-Qaadhee Abu Ya'laa, Al-Masaa'il al-Fiqhiyyah Min Kitaab ar-Riwaayatayn WalWajhayn, revised by Dr. 'Abdul-Kareem Al-Laahim, 11/350; Al-Haawee al-Kabeer, 6/382.Ibn Qudaamah, Ash-Sharh al-Kabeer, 11/235. Ibn Qudaamah quotes Ibn alMundhir as saying, "The report about Bareerah is firmly established, and we do not know of any report which contradicts it. Therefore, it is necessary to adopt this view." 152

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Several responses were made in refutation of this evidence including the following: 1. Hishaam ibn 'Urwah is the only hadeeth narrator in whose narration we find the statement "Let them stipulate that her walaa' will be for them" in the hadeeth. In fact, Al-Muzanee quotes Imaam AshShaafi'ee as saying, "This is the most terrible mistake one can make. Indeed, only Hishaam [ibn 'Urwah] narrated this [addition] but others opposed him and even classified him as 'weak'." After citing this, AlMuzanee (may Allah have mercy on him) writes, "This [contention] is more appropriate and better suited, for it does not befit the Prophet (may Allah's peace and blessings be upon him) who is well-known for his high position in the sight of Allah to disapprove of an invalid condition people stipulated and at the same time allow his family members to stipulate an invalid condition. In fact, he was rather unwavering to make his family members observe Allah's Laws more than anyone else." 155 Proponents of the second view rejected this response by contending that Hishaam ibn 'Urwah was known for his reliability and trustworthiness in narrating Prophetic reports and that the report he narrated was agreed upon by Al-Bukhaaree and Muslim; therefore, it has no defect and should not be rejected. 156 2. There is no indication in the hadeeth whatsoever that the stipulation of walaa' and manumission is part of the contract; for conditions are only invalid if they are stipulated in the contract; therefore, the condition, as the hadeeth indicates, must have been stipulated before the conclusion of the contract, in which case, the Prophet's command to 'Aa'ishah to let them stipulate that her walaa' would be for them was only by way of making a promise which does not have to be honoured. 157

Al-Umm along with Mukhtasar al-Muzanee, 8/438, Dar al-Ma'rifah edition. See Ibn Hajar, Fath al-Baaree, 5/238; Al-Khattaabee, Ma'aalim as-Sunan along with Sunan Abu Daawood, 4/246-247; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/337; and Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/663. 157 See Fath al-Baaree, 5/240; and Sharh ma'aanee al-Aathaar, 4/44. 155 156

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Proponents of the second view also rejected this response by asserting that it does not befit the Prophet (may Allah's peace and blessings be upon him) to order someone to make a promise while he knew that such a person would not honour such a promise. 158 3. The actual meaning of the Arabic letter 'la' (for) in the phrase 'washtaritee la hum' (which is translated here as 'let them stipulate that [her walaa'] would be for them') is essentially ''alaa' (on or against), as evidenced by the verses "If you did evil, [you do it] against yourselves" 159 (where the Arabic word 'la haa' is translated as 'against yourselves') and "on them is the curse" 160 (where the Arabic word 'la hum' is translated 'on them'). This is the very interpretation provided by Ash-Shaafi'ee as well as Al-Muzanee and At-Tahhaawee161 . Therefore, the meaning would be "Impose a condition on them". Proponents of the second opinion yet challenged this response by quoting Imaam An-Nawawee thus: "The contention that the actual meaning of the Arabic word 'la ' (for) in the hadeeth is 'alaa' (on or against) is undoubtedly weak because the Prophet (may Allah's peace and blessings be upon him) disapproved of stipulating a condition, and were this word to mean 'alaa' (on or against), he would certainly not have disapproved of the condition." 162 4. The Prophet's command in his statement "Let them stipulate that her walaa' will be for them" signifies a warning which, on the face of it, looks like a command but actually implies a prohibition, as evidenced by the Qur'anic verse "Do what you will. Truly, He sees [clearly] all that you do"163 . Ash-Shaafi'ee (may Allah have mercy upon him) writes in this regard, "Because those who stipulate a condition which contravenes that which Allah and His messenger have judged are considered disobedient, and because one of the ways of disciplining the See Fath al-Baaree, 5/240; and Sharh ma'aanee al-Aathaar, 4/44. Surat al-Israa', 17:7. 160Surat ar-Ra'd, 13:25. 161 See Sharh Ma'aanee al-Aathaar, 2/221; Al-Khattaabee, Ma'aanee as-Sunan, 4/447; AshShaafi'ee, Al-Umm, 8/438; and Fath al-Baaree, 5/239. 162 See An-Nawawee, Sharh Saheeh Muslim, 10/140; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/338, where Ibn Taymiyyah provides a detailed refutation of such a view.. 163 Surat Fussilat, 41:40. 158 159

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disobedient is not to honour the condition they have stipulated by way of preventing them from doing so and deterring others from emulating them, such discipline represents the mildest form of correction." 164 Proponents of the second opinion have also challenged this response by contending that even though such understanding is probable in the Arabic language, it is the literal sense (haqeeqah), and not the metaphorical or figurative sense (majaaz), that applies here.165 In fact, there are many other responses166 in this respect, but the evidence that will clarify the matter best (Allah knows best) is that the Prophet (may Allah's peace and blessings be upon him) had informed Muslims that the seller's stipulation that walaa' is for him and not for the person who manumits the slave is invalid. This became common practice amongst the people to such an extent that even Bareerah's masters were aware of it. However, when they wanted to stipulate a condition which they knew was prohibited, the Prophet (may Allah's peace and blessings be upon him) issued the statement, "Let them stipulate that her walaa' will be for them", which clearly signifies a warning. Another example of the Qur'anic style which sould clarify the point is the verse "Do [as you will], for Allah will see your deeds, and [so will] His Messenger and the believers."167 This is further evidenced by the Prophet's saying to 'Aa'ishah (may Allah be pleased with her), "Buy and manumit her, and let then stipulate whatever they like." 168

See Ibn Hajar, Fath al-Baaree, 5/239. I have not found it in Ash-Shaafi'ee's Al-Umm, though. 165 See Ibn Hajar, Fath al-Baaree, 5/239; and Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/664-665. 166 See Ibn Taymiyyah, Majmoo' al-Fataawaa, Vol. 29/ff337; Sharh Muntahaa al-Iraadaat, 2/163; Fath al-Baaree, 5/239-240; Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/664; Sharh Ma'aanee al-Aathaar, 4/ff45; Sharh Mushlil al-Aathaar, 11/362; and An-Nawawee, Sharh Saheeh Muslim, 10/140. 167 Surat at-Tawbah, 9:105. 168 Reported by Al-Bukhaaree, Book of the Mukaatib (i.e. the slave who binds himself to pay a certain amount equivalent to his freedom by seeking emancipation from his master), and Fath al-Baaree, 5/245; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/239. Ibn Taymiyyah supported this view and also attributed it to Imaam Ahmad who said, "This is the most correct view." See also Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/665. 164

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Support for this also comes from the Prophet's statement, "What is wrong with some people who stipulate things which are not in Allah's Laws?", which serves as a reproof for Bareerah's masters, indicating that he had already clarified Allah's ruling on the matter. For had he not clarified this matter, he would have begun his speech by clarifying the ruling of such an act and not by reproaching 'those who stipulate things which are not in Allah's Laws'. 169 Furthermore, the hadeeth narrated by 'Aa'ishah (may Allah be pleased with her) denotes that the invalid condition does not render the contract null and void. This is fine as long as the condition does not contravene the objective and requirements of the contract, but how can proponents of this [second] opinion prove that the condition stipulated in the tasreef contract is invalid? In fact, in the course of discussing the evidence supplied by proponents of the first opinion, it became clear that stipulating such a condition does not render the contract void; therefore, there is no point claiming that such a condition is invalid. Second Evidence Proponents of the second opinion argue that it is a contract which does not normally become void due to invalid conditions, just like the invalid conditions in the marriage contract, in which case the contract is valid even though the condition is invalid.170 In response to this evidence, it has been argued that such evidence supports the view that the contract remains valid despite the invalidity of the condition, but the disagreement is about whether the condition stipulated in the tasreef contract is valid or not. It has also been argued that evidence furnished by proponents of the first opinion fail to prove that such a condition in the tasreef contract is void.

Evidence furnished by those who maintain that both the contract and the condition are valid

First Evidence 1. Qur'anic verses commanding the faithful to fulfil their obligations. These include: 169 170

Ibid. See Al-Qaadhee Abu Ya'laa, Al-Masaa'il al-Fiqhiyyah Min Kitaab ar-Riwaayatayn WalWajhayn, revised by Dr. 'Abdul-Kareem Al-Laahim, 11/350.

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a. "O you who believe! Fulfil [all] obligations." 171 b. "Whenever you speak, speak justly even if a near relative is concerned; and fulfil the Covenant of Allah. Thus does Allah command you that you may remember." 172 2. Qur'anic verses and Prophetic traditions which prohibit treachery and deception and warn against doing so. These include: a. "Amongst them are men who made a covenant with Allah that if He bestowed upon them of His bounty they would give [largely] in charity and be truly among those who are righteous; but when He did bestow on them of His bounty, they became misers and turned back [from their covenant], averse [from its fulfilment]. So He had put as a consequence hypocrisy into their hearts [to last] until the day whereon they shall meet Him, because they broke their covenant with Allah and because they lied [again and again]." 173 b. Fulfil the covenant of Allah when you have entered into it, and do not break your oaths after you have confirmed them; indeed, you have made Allah your surety, for Allah knows all that you do." 174 3. The Prophet (may Allah's peace and blessings be upon him) said, "The signs of a hypocrite are three: (1) whenever he speaks, he tells a lie; (2) whenever he makes a promise, he breaks it, and (3) whenever he is entrusted [with something], he proves to be dishonest." 175 4. The Prophet (may Allah's peace and blessings be upon him) also said, "Allah the Almighty said, 'I will be against three people on the day of Judgment: (1) One who makes a covenant in My Name but he proves treacherous; (2) One who sells a free person [as a slave] and eats the price; and (3) One who employs a labourer and gets the full work done by him but does not pay him his wages.'"176

Surat al-Maa'idah, 5:1. Surat al-An'aam, 6:152. 173 Surat at-Tawbah, 9:75-77. 174 Surat an-Nahl, 16:91. 175 Reported by Al-Bukhaaree, Kitaab al-Eemaan, 1/21; and Muslim, Kitaab al-Eemaan, 1/78, on the authority of Abu Hurayrah (may Allah be pleased with him). 176 Reported by Al-Bukhaaree, Kitaab al-Buyoo', 2/776, on the authority of Abu Hurayrah (may Allah be pleased with him),. 171 172

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Proponents of the third view argue that these verses and Prophetic traditions command the believers to fulfil their obligations and honour their agreements and prohibit them from treachery, betrayal and deception. They even sternly address those who commit such prohibitions. Therefore, were such conditions invalid, the Qur'anic verses and Prophetic traditions would not command the believers to fulfil their obligations and honour their agreements and censure those who breach them. Hence, because the Sharee'ah commands the believers to honour their contracts and fulfil their obligations, it becomes clear that all contracts and conditions are essentially valid; for the Sharee'ah deems valid anything whose objective is to be fulfilled. In fact, because the objective of the contract is to be honoured, and because the Lawgiver commands the believers to meet the objective of the contract (i.e. its fulfilment), it becomes crystal clear that contracts and conditions are generally lawful and valid.177 Second Evidence Two reports are cited here, namely: 1. The Prophet (may Allah's peace and blessings be upon him) said, "The most worthy condition which must be fulfilled is that which makes sexual intercourse lawful (i.e. through a marriage contract)." 178 2. 'Abdur-Rahmaan ibn Ghunaym (may Allah be pleased with him) said, "I was once in the company of 'Umar ibn al-Khattaab (may Allah be pleased with him) and I was sitting so close to him that my knees were touching his when a man came in and said to him, 'I married such-and such a woman and she stipulated that I would live with her in her region. Now I have made up my mind to move to such-and-such a region, what shall I do?' 'Umar replied, 'You have to meet the condition she stipulated [in the contract].' Disappointed, the man said, "Tough luck for men, then. So that means a woman can divorce her husband if See Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, pp.219-220; and Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/145. 178 Reported by Al-Bukhaaree, Kitaab ash-Shuroot, hadeeth no. 2721; see also Fath al-Baaree, 5/404 for commentary on this report. It was also reported by Muslim, Kitaab anNikaah, 2/1036, hadeeth no. 1418. Both reports are narrated on the authority of 'Uqbah ibn 'Aamir (may Allah be pleased with him). 177

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she desires to do so?" 'Umar (may Allah be pleased with him) replied, "The believers are on (i.e. have to stick to) their conditions when their interests clash."179 These reports clearly indicate, they argue, that the conditions that do not contravene textual evidence from the Qur'an or the Sunnah must be honoured and that the stipulations agreed upon by the two contracting parties must be observed. In fact, the Prophet's statement 'The most worthy condition which must be fulfilled…' indicates that conditions in general are to be honoured, and that the conditions stipulated in a marriage contract are most worthy of being fulfilled because marriage conditions are to be strictly observed in order to take sufficient precautions. In fact, the main reason behind the command to honour conditions and to include them in contracts (and enter into contracts or cancel them, for that matter) is to act in accordance with their dictates180 Third Evidence Imaam Maalik and other jurists reported that 'Abdullaah ibn Mas'ood purchased a slave-girl from his wife and she stipulated the condition that if he bought her, she could always buy her back for the price that he had paid. 'Abdullaah ibn Mas'ood asked 'Umar ibn al-Khattaab about that and 'Umar replied, "Do not approach her (i.e. don't have intercourse with her) while anyone has a condition concerning her over you." 181 In this report, proponents of the third view argue, 'Umar ibn alKhattaab (may Allah be pleased with him) forbade 'Abdullaah ibn Mas'ood from having sexual intercourse with the slave-girl but did not say that the contract and the condition were void, because having intercourse is one thing, while the validity of the sale contract is something else. Nor did he consider the condition invalid and declare

Reported by al-Bukhaaree; see Fath al-Baaree, 5/404. It was also reported by Ibn Abee Shaybah in his Musannaf , 9/156 and Sa'eed ibn Mansoor in his Sunan, 11/216 on the authority of Ismaa'eel ibn Ghunaym; and the report's chain of narrator s (isnaad) is classified as 'good'. 180 See Ibn Hajar, Fath al-Baaree, 9/272; and Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 219. 181 Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616; and Al-Bayhaqee in As-Sunan Al-Kubraa, 5/236. 179

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the contract valid. Had this been the case, he would not have forbidden him from having intercourse with her. 182 Fourth Evidence Contracts and conditions form part of the ordinary acts which are generally lawful, as evidenced by the Qur'anic verse, "He (i.e. Allah) has explained to you in detail what is forbidden to you." 183 Therefore, if contracts and conditions are not forbidden, it follows that they are not invalid and thus certainly legitimate. 184 Fifth Evidence There is no ruling in the Sharee'ah which considers types of contracts and conditions to be forbidden unless otherwise proven to be lawful. Indeed, the fact that there is no evidence to the effect that they are forbidden, it follows that they are doubtless not forbidden. In fact, it is proved through istishaab185 that they are either lawful or generally forgivable, just like objects of material value which are not forbidden. 186

See Ibn Rajab, Taqreer al-Qawaa'id Wa Tahreer al-Fawaa'id, 3/26. Surat al-An'aam, 6:119. 184 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/150; and Ibn Taymiyyah, Al-Qawaa'id anNooraaniyah, p. 222. 185 Istishaab literary means courtship or companionship. In Usool al-Fiqh (principles of Islamic jurisprudence), istishaab means presumption of existence or non-existence of facts. It can be used in the absence of other proofs (dalaa'il: sing. daleel). In fact, it has been validated by a large member of scholars, though not all. In its positive sense, istishaab presumes continuation of a fact (marriage or a transfer of ownership) until the contrary is proved. However, the continuation of a fact would not be proved if the contract is of a temporary nature (for instance, ijaarah, or lease). Istishaab also presumes continuation of negative. Because of its basis in probability, istishaab is not a strong ground for the deduction of the rules of Sharee'ah. Hence, when it comes in conflict with another proof (daleel), the latter takes priority. Istishaab is of four types: 1) Presumption of original absence (istishaab al-'adam al-aslee): This means that a fact or rule which did not exist in the past is presumed to be non-existent. 2) Presumption of original presence (istishaab al-wujood al-aslee): This means that the presence of that which is indicated by law or reason is taken for granted. For instance, a husband is liable to pay "Mohr" by virtue of existence of a valid marriage. 3) Istishaab al-hukm: (continuity of the ruling): This presumes the continuity of general rules and principles of law. For instance, when there is a ruling in the law (whether prohibitory or permissive), it will be presumed to continue. 182 183

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Sixth Evidence Contracts are generally concluded based on the contracting parties' mutual consent and satisfaction. Indeed, their terms become binding upon them following what they have obliged themselves to fulfil, for Almighty Allah says, "O you who believe! Do not eat up your property among yourselves in vanities, but let there be amongst you traffic and trade by mutual good-will; nor kill [or destroy] yourselves, for truly Allah has been to you Most Merciful." 187 He also said, "And give women [on marriage] their dower as an obligation; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer." 188 In these verses, Almighty Allah makes the permissibility of enjoying part of the dower and consuming one another's wealth conditional on the mutual consent of the parties to the contract. This means that mutual consent makes the consumption of one another's wealth and taking part of the dower absolutely permissible…Therefore, if the contracting parties mutually consent to the terms of a certain trade contract, or if one of them chooses, of his own good pleasure, to give the other party something without any return whatsoever, then this is absolutely permissible, as evidenced by the Qur'anic verses, unless such contracts include [a condition] which Allah and His Messenger have made forbidden. Indeed, a condition which is stipulated in the tasreef contract is one of the conditions which are not made forbidden by Allah or His Messenger.189 4) Istishaab al-wasf (continuity of attribute): This means to presume continuity of an attribute until the contrary is established (for instance, clean water will continue to be treated as clean water). Scholars of Usool al-Fiqh (sources of Islamic jurisprudence)are in general agreement on the first three types of istishaab. There is more disagreement on the fourth one. (Translator's Note) (Translator's Note) See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/150, and Al-Qawaa'id an-Nooraaniyah, p. 222. For a detailed discussion of istishaab as a legal proof, see Al-Bukhaaree, Kashf alAsraar, 3/378; and Ash-Shawkaanee, Irshaad al-Fuhool, p. 209. 187 Surat an-Nisaa', 4:29. 188 Surat an-Nisaa', 4:4. 189 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/155; and Ibn Taymiyyah, Al-Qawaa'id anNooraaniyah, p. 225. 186

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Seventh Evidence People in general need such transactions along with the conditions they stipulate, and the Lawgiver does not prohibit things which people need in their transactions due a slight form of gharar (risk and uncertainty) that might result from such transactions. Rather, He permits anything people need in their dealings; an example of this is the permissibility of selling fruits before their benefit is evident to be kept on the trees until picking season [without causing any harm to the seller]and even before some of the tangible assets of the transaction (mabee') are in existence yet. He has also permitted the buyer to stipulate buying only the dates of pollinated palm trees, which means that the fruits' benefit is not evident yet (i.e. it is not clear yet if they are free from all the dangers of being spoil or blighted) as long as they are still on the trees. He has also allowed the sale of 'araayaa 190 by estimating the dates on them for measured amounts of dried dates, when the need arises, even though this may be regarded as a form of riba al-fadhl191 ; for this is done with a view to securing two better benefits at the expense of two lesser ones and averting two greater harms at the cost of two lesser ones.192 The Preponderant View It is clear from the forgoing discussion (Allah knows best) that the preponderant view is the third one, whose proponents maintain that both the contract and the condition are valid. I deem it necessary, though, that such a condition is to be confined to a specific period of time. This can be realised through one of the following ways: 1. Through the prevailing customs ('urf): After a certain period of time, people do not seem to show interest in some commodities, such as magazines and daily newspapers. If someone says to another, for instance, "If such goods are not sold, I will come back and you will get your money back", this is absolutely permissible and does not include any elements of risk and uncertainty (gharar) whatsoever. The same 'Araayaa (sing. 'ariyah) are distinguished date-palms. (Translator's Note) Ribaa al-fadhl (interest in trade): This type of ribaa (usury) is the payment of an addition by the debtor to the creditor in the exchange of commodities of the same kind. (Translator's Note) 192 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/227. 190 191

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thing can be said about fresh foods, such as daily products and their derivatives. 2. If the period of time is so long that the object of the contract (ma'qood' alayhi) is affected by change, the period is to be specified; for the stipulation of cancelling the contract without specifying a certain period of time is a blatant form of gharar (risk and uncertainty). The author of Mataalib Ulee an-Nuhaa, as well as some other Hanbalite jurists, clearly points out to this constraint in the course of discussing the ruling on Bay' al 'arboon (deposit-secured sale)193 : "The stipulation made in the deposit-secured sale is valid if the parties to the contract set a specific period of time (such as one month from now); in fact, the stipulation of a condition will not be valid without specifying the period of time, as the buyer or the seller will not know how long they will have to wait. Therefore, stating an unknown period is not appropriate…as this only causes sufficient harm." 194 The reason behind deciding on such a preponderant view is based on the following: 1. Proponents of the third opinion have furnished cogent evidence and established ample evidence against the arguments furnished by proponents of the other two opinions. In fact, most of the statements made by the Prophet's companions in this respect lend support to such view. 2. Most Muslim jurists are agreed that making a stipulation which restricts the generality of the contract, such as stipulating the sale of goods on a deferred payment basis or manumitting the sold slave, is absolutely permissible. They are also agreed that it is permissible to add, or decrease, to the property duly possessed according to the terms of the contract, such as stipulating a certain benefit to one of the contracting parties or that the other party should not sell or donate the property purchased or if the goods will be returned to the seller if they do not sell well. This is a sale agreement in which a security deposit is provided in advance as part payment towards the price of the commodity. The deposit is forfe ited if the buyer does not meet his obligation. (Translator's Note) 194 See Ibn an-Najjaar, Mataalib Ulee an-Nuhaa, 3/78. 193

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In fact, the distinction made by some jurists between the manumission of slaves (despite the immense virtues of setting slaves free and despite the fact that the Lawgiver urges Muslims to do so) and other acts is rather weak. As a matter of fact, some types of donations are far better than setting slaves free! Maymoonah (may Allah be pleased with her) manumitted a slave-girl without taking the Prophet's permission. When he found out about this incident, he asked her, "Have you already done it?" She replied, "Yes." The Prophet (may Allah's peace and blessings be upon him) then said, "You would have got more rewards if you had given her (i.e. the slave-girl) to one of your maternal uncles." 195 Therefore, if the buyer or the seller stipulates that one of his [poor] relatives be benefited [from something] or that he is given charity, this is absolutely permissible. 196 Given that it is unanimously agreed that it is permissible to take part of the tangible asset of the transaction (mabee'), some acts are, a fortiori, also permissible.197 3. The harm that will be caused to people by considering such conditions impermissible is actually more serious and greater than the little harm which is feared to cause mutual hatred and 'consuming other people's property unjustly'; for the type of gharar (risk and uncertainty) involved is rather slight and people urgently need to engage in such transactions. In fact, people's urgent need is given precedence over a slight, forgivable form of gharar, especially when the parties to the sale contract both benefit from the transaction: The seller benefits through the merchandizing of his goods, and the buyer benefits by returning the goods which he fails to merchandise or which do not sell well. In reality, the Islamic Law (Sharee'ah) in its entirety, as Ibn Tamiyyah (may Allah have mercy on him) argues, is founded on the principle that a prohibited act becomes permissible when a certain harm, which is essentially prohibited, clashes with an urgent need that is preponderant and has more in its favour. Therefore, such an act is, a fortiori, permissible if the harm is non-existent or rather slight. 198 Reported by Al-Bukhaaree, Kitaab al-Hibah, 22/915; and Muslim, Kitaab az-Zakaat, 2/694. 196 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/177. 197 See Ibn Taymiyyah, Al-Qaaa'id an-Nooraaniyah, p. 214. 198 Ibid., p. 155. 195

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4. Ibn Taymiyyah (may Allah have mercy on him) writes, "Those who excessively consider unlawful those acts which they believe form a type of gharar (risk and uncertainty) are bound to declare the permissibility of what they have declared unlawful, either by not adhering to the rules of the School of Jurisprudence which they follow regarding this particular matter or by resorting to tricks. We have indeed seen and heard of [many] people of this type; for they never adhere to the principles of the School of Jurisprudence they follow when they declare such matters forbidden, as they simply cannot do without them." 199 He also writes, "Those who reject the employment of analogical reasoning which they consider firmly established and do not carefully consider the preponderant view which contradicts theirs do in fact make many religious matters difficult; their minds become narrow and their religion difficult." 200 5. The erudite scholar Ibn al-Qayyim (may Allah have mercy on him) eloquently writes in this connection, "Contractual conditions are important in the sight of the Lawgiver, a fact which many jurists are not aware of; for they annul conditions not annulled by the Lawgiver, and consider the contract invalid because of such conditions which they consider invalid, as there is nothing indeed which points to its invalidity. They actually contradict themselves regarding contracts which permit and which do not permit conditions. They do not possess a consistent criterion based on textual evidence. In fact, it is the legal criterion established by textual evidence [from the Qur'an and the Sunnah] which ought to be followed, namely that any condition which contradicts the ruling issued by Allah in His Book is invalid, and any condition which does not contradict [Allah's rulings mentioned in His Book] are undoubtedly permissible. This can be further clarified by the fact that observing a condition in a contract is tantamount to fulfilling a vow; for invalid vows are only those which contradict the rulings Allah mentions in His Book. Indeed, it is more appropriate to fulfil conditions

199

Ibid., p. 152. p. 157.

200Ibid.,

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regarding people's rights than to fulfil a vow which relates to one of Allah's rights."201

II. The Ruling regarding the Sale with the Condition that makes the Transaction of Sale contingent on a future Event This is the kind of sale (also called bay' mu'allaq 'suspended conditional sale') which is based on the condition that makes the transaction of sale contingent on a future event. For example, the buyer tells the seller, "If I manage to merchandise the commodity and sell it, then that is fine; otherwise, the sale contract we have concluded will not be binding"; or the seller may tell the buyer, "The goods which you fail to merchandise or sell will be mine." Muslim jurists (may Allah have mercy on them) are not agreed as to the ruling regarding this type of sale. They have expressed the following two opinions: First Opinion Making the sale contract conditional on a future event is not valid 202 . This is the view adopted by the majority of the Hanafite203 , Maalikite204 , Shaafi'ite205 and Hanbalite206 scholars despite some forms which they regard as exceptions.207 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 3/302. See Haashiyat Ibn 'Aabideen 'Alaa adh-Dhurr al-Mugktaar, 5/240-241. 203 See Al-Mabsoot, 13/17; Tabyeen al-Haqaa'iq Sharh Kanz ad-Saqaa'iq, 4/131; Fath alQadeer, 6/447; and Haashiyat Ibn 'Aabideen 'Alaa adh-Dhurr al-Mukhtaar, 5/240; Majma' al-Anhur Fee Sharh Multaqaa al-Abhur, 2/131; and Al-Fataawaa al-Hindiyyah, 4/397. 204 See Al-Qaraafee, Al-Furooq, 1.228; Ibn Rushd, Al-Muqaddimaat, 5/305 and 415; AlBaajee, Al-Muntaqaa, 4/157-158; and Jawaahir al-Ikleel, 1/248. 205 See Rawdhat at-Taalibeen, 3/446; Al-Muhadh-dhab, 1/354; Al-MAnthoor Fee al-Qawaa'id, 11/373-374; Ibn As-Subkee, Al-Ashbaah Wan-Nadhaa'ir, 1/379; and Fath al-Mu'een along with its commentary I'aanat at-Taalibeen, 3/6-7. 206 See Ibn Qudaamah, Al-Mughnee, 6/507; Al-Mubdi', 4/59; Al-Insaaf, 4/356; Sharh Muntahaa al-Iraadaat, 2/23; and Kash-shaaf al-Qinaa', 3/195. 207 The Hanafites have excluded only one form of the forms of sale contracts which are dependent on conditions, namely, if one of the contracting parties says to the other, "I will sell you such-and-such an item only if so-and-so wants it". This, according to them, is absolutely permissible as long as he fixes the period of time for three days. See Tabyeen al-Haqaa'iq, 4/131 and Haashiyat Ibn 'Aabideen, 5/242. The Maalikites have expressed the same opinion except that the person for whom the sale is suspended lives near the place where the contract is concluded so his opinion is known or that he 201 202

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Second Opinion Making the sale contract conditional on a future event is absolutely valid as long as doing so serves to realise people's benefits and if the condition stipulated does not include anything which Allah and His Messenger (may Allah's peace and blessings be upon him) have forbidden. This is the view adopted by Imaam Ahmad according to one of his views.208 Ibn Taymiyyah (may Allah have mercy on him) writes in this respect, "I have already mentioned that [Imaam] Ahmad maintains that it is permissible to make the sale agreement contingent on a certain event in the future; in fact, I have not come across any text by him or by anyone of his old companions to the contrary." 209 This is the adopted

may be in attendance when the contract is concluded. See Al-Mudawwanah, 3/214. The Shaafi'ites and the Hanbalites have excluded making the sale agreement contingent on Allah's Will, if blessings are behind the stipulation of such a condition. See AlManthoor Fee al-Qawaa'id, 1/374; I'aanat at-Taalibeen, 3/7; Al-Mubdi', 4/59; and AlInsaaf, 4/356. The Hanbalites, however, have added two more forms: (1) The seller says to the buyer, "I will sell you such-and-such a commodity on condition you give me the money within three days; otherwise, the sale agreement will be cancelled." (2) Bay' al 'arboon (deposit-secured sale) in which case, someone buys a certain commodity for a fixed price and gives the seller a security deposit in advance as part payment towards the price of the commodity. The deposit is forfeited if the buyer does not meet his obligation. All scholars from all four schools of jurisprudence have, however, excluded the sale agreement which is contingent on one of the contracting parties' will; and example of this is when the seller says to the buyer, "I will sell this to you if you will", or when the buyer says, "I will buy such-and-such a commodity from you at such-and-such a price if you will". The reason behind such permissibility, they argue, is based on the requirement of the contract, namely the contracting parties' satisfaction and mutual consent; if, however, the sale agreement which is contingent on one of the contracting parties' will is based on the contract itself, such a condition is not permissible due to the ignorance and uncertainty (jahaalah) in the contract. For a detailed discussion, see Al-Mubdi', 4/59-60; Ma'oonat Ulee an-Nuhaa, 3/73; Ibn Uthaymeen, Ash-Sharh al-Mumti', 8/250; Kash-shaaf al-Qinaa', 3/195; Al-Bahr ar-Raa'iq, 6/195; Al-Mudawwanah, 3/214; Al-Manthoor Fee al-Qawaa'id, 1/374-375; Mughnee alMuhtaaj, 2/230-231; Al-Insaaf, 4/365; and Sharh Muntahaa al-Iraadaat, 2/33. 208 See Ibn Muflih, Al-Furoo', 4/62; Al-Insaaf, 4/356; and Al-Mubdi', 4/59. 209 Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee, p. 227.

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and preferred view of Ibn Taymiyyah (may Allah have mercy on him)210 and his disciple Ibn al-Qayyim.211

Evidence Furnished by Proponents of both Opinions

Evidence Furnished by Proponents of the First Opinion Those who hold that it is not permissible to make the sale transaction contingent on a future event is not permissible provide a number of proofs including the following: First Evidence Making the sale transaction contingent on a future event involves some kind of uncertainty (gharar) and risk in view of whether it will take place or not and the time of its occurrence in the future; for the two parties to the contract do not know if the future event upon which the sale contract is contingent will actually take place or not. Furthermore, it may take place at a time when the interest of the seller or buyer changes, and it is well-known that the Prophet (may Allah's peace and blessings be upon him) forbade the sale of mulaamasah 212 and the sale of munaabadhah.213 These types of sale agreements are just like the kind of sale transaction that is contingent on a future event because in both types of sale the sale transaction is made contingent on either throwing something to the other party or touching it, which are conditions in themselves. This type of sale agreement with such a condition is not permissible; and if the seller sells something without making the tangible asset of the contract known, he actually sells it with some

See Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee, p. 227; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/346-347; Al-Ikhtiyyaraat al-Fiqhiyyah, p. 218; and Al-Furoo', 4/62. 211 See I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 3/387. 212 Mulaamasah means touching something. The sale of mulaamasah has different forms: The sale becomes valid if the buyer touches, say, clothes without even examining or looking at them. This is a mode of selling which was practised in the pre -Islamic period of ignorance (jaahiliyyah). It means that when the buyer touches any item displayed for sale he has to buy it at the price decided by the seller. (Translator's Note) 213 The sale of munaabadhah is also a mode of selling which was prevalent in jaahiliyyah before the advent of Islam. It means that when the buyer throws something to the seller, the former has to buy it at the price decided by the seller. (Translator's Note) 210

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ignorance and uncertainty on the part of the buyer, hence the type of risk and uncertainty (gharar) involved in the sale. 214 This evidence has been refuted as follows: 1. The claim that making the sale transaction contingent on a future event constitutes a form of gharar (risk and uncertainty) is rejected and is to be carefully reconsidered. It is true that the Prophet (may Allah's peace and blessings be upon him) forbade anything that would amount to gharar, such as bay' as-sineen215 (selling the dates of one's date palms for more than a year, in which case they may or may not grow), habal alhabalah 216 , and the selling of fruits before their benefit is evident (i.e. they are free from all the dangers of being spoiled or blighted). The Prophet (may Allah's peace and blessings be upon him) forbade the sale of fruits until they are almost ripe. When he was asked, "What does 'until they become ripe' mean?" He replied, "[It means] until they become red." He further said, "If Allah spoiled the fruits, what right would one have to take the money of one's [Muslim] brother?" 217 Indeed, this is real gharar and risk-taking which involves consuming other people's property unjustly, for the buyer's objective may or may not be realised through the sale agreement. As for the sale itself, it does not constitute any form of gharar; rather it is an agreement and must not be described as a form of gharar, whether it is a completed contract or a contract that is contingent on a future event. In any case, none of the two contracting parties would be considered to have consumed the other party's property unjustly, because the contract is concluded on the basis of a specific condition, and if such a condition exists, the sale is finalised. See Ibn Qudaamah, Al-Kaafee, 2/18. The Prophet (may Allah's peace and blessings be upon him) forbade this type of sale as it constitutes a form of gharar (risk-taking, uncertainty). See Ibn al-Atheer, AnNihaayah Fee Ghareeb al-Hadeeth Wal-Athar, 2/414; and Al-Qhaadhee 'Iyyadh, Mashaariq al-Anwaar, 2/106 and 222. 216 Habal al-habalah is the sale of what is in the womb of an animal : Al-Bukhaaree reported on the authority of 'Abdullah ibn 'Umar that Allah's Messenger (may Allah's peace and blessings be upon him) forbade the sale called habal al-habalah, which was a kind of sale practised in the pre-Islamic period of ignorance (jaahiliyyah). One would pay the price of a she-camel which was not born yet and would be born by the immediate offspring of an extant she-camel." (Translator's Note) 217 Reported by Al-Bukhaaree, Book of Sale, 2/766; and Muslim, Book of Watering, 3/1190. 214 215

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Thus, this cannot be labelled gharar, because in the case of uncertainty and risk-taking (gharar), a contract is concluded whereby one party receives the other party's money without the latter having an equivalent counter-value or recompense ('iwadh), which he takes risks in seeking it. If he does not get it, this then amounts to consuming other people's wealth unjustly. This indeed is the true meaning of gharar which implies risk-taking and gambling.218 2. The claim that the prohibition behind mulaamasah and munaabadhah sales is their similarity to making the contract contingent on a future event or condition is unfounded. In fact, these two types of sale transactions are forbidden because of the element of uncertainty as to the tangible asset of the contract, which remain uncertain in both types of sale.219 With regard to the mulaamasah and munaabadhah types of sale, if we demand to sell an article without giving the buyer a chance to examine this article, then this sale amounts to uncertainty and risktaking, for the article may or may not be in good condition. It is because of the resultant risk-taking that such types of sale are considered prohibited, and none of the leading Muslim jurists deem such sale transactions permissible. However, if the buyer sees the article for sale and carefully examines it and the seller says to him, if I throw this piece of cloth to you, I will charge you such-and-such a price (as is the practice in munaabadhah), this indicates that the sale transaction becomes contingent on the buyer's consent to take the piece of cloth. In fact, this is similar to the so-called usual practice of immediate exchange of considerations (mu'aataah), and there is no difference whatsoever between the seller's saying, "Take this piece of cloth (which both of them have examined) for two dirhams" and "If you take this piece of cloth (which both of them have examined), I will charge you one dirham for it". Similarly, there is no difference whatsoever between saying, "Throw (or any other synonymous verbs) to me that piece of cloth for one dirham" and "If you throw (or any other For a thorough discussion of this point, see Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee, pp. 227-228. 219 For a detailed explanation of the concept of gharar, see Ibn Taymiyyah, Majmoo' alFataawaa, 3/257; Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 138; and Al-Mabsoot, 13/194. 218

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synonymous verbs) this piece of cloth to me, I will give you one dirham for it". As long as the nature of the piece of cloth is known to both contracting parties, this practice does not amount to risk-taking or gharar.220 In response to this refutation, proponents of the first opinion argue that they do not agree that the suspended conditional sale (bay' mu'allaq) is free from any forms of gharar because mere suspension, they argue, constitutes gharar, which leads to consuming people's wealth unjustly when the contract is concluded at a future date. For the parties of the contract will not be then aware of the nature or the state of the commodity or its value. To illustrate, if someone sells a certain commodity for $ 100 based on a suspended conditional sale, and when the event upon which the sale contract was made contingent takes place and coincides with a sharp fall or increase in the commodity's value (for instance, $ 70 and $ 130, respectively), will this not amount to 'consuming other people's wealth unjustly'? Indeed, there is no difference whatsoever between this type of transaction and the forbidden practice of selling dates before their benefit is evident. Just like selling dates before their benefit is evident oscillates between the ripening of the dates (as anticipated by the buyer) and the non-ripening (as unanticipated by the seller), so is the suspended conditional sale which oscillates between the possibility of the commodity's value being as anticipated or not anticipated by the buyer when the sale contract becomes due at a future date. Therefore, 'consuming people's wealth unjustly' applies to both types of transactions.221 In answer to this argument, opponents of this view contend that if no time limit, which should be common to people, is specified for the suspended conditional sale, gharar will certainly result form such a transaction; furthermore, the contracting parties will suffer as a consequence and the tangible asset of the contract (mabee') will definitely change, which will lead to 'consuming people's wealth unjustly'. However, making the sale contract contingent on a future event does not contravene a legal ruling, nor does it constitute any form of gharar 220 221

See Ibn Taymiyyah, Qaa'idah Fee al-'Uqood, pp. 228-229. See Al-Gharar Wa Atharuhu Fee al-'Uqood, p. 145.

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whatsoever, as is the case with bay'as-sineen222 and bay' habal alhabalah 223 . These types of business transactions are forbidden because no time limit is specified in them, as the buyer and the seller do not know until when they have to wait. Therefore, failure to specify a time limit will result in unnecessary harm. 224 Second Evidence The suspended conditional sale (bay' mu'allaq) contradicts the sale contract because the sale is a type of the contracts of ownership whose effects are immediately witnessed: the ownership of the tangible asset of the contract is immediately transferred to the buyer, and the stipulated condition which makes the sale contingent on it at a future date prevents it.225 In response to this evidence, Ibn Taymiyyah and his disciple Ibn alQayyim (may Allah have mercy on them) refuted the claim that the instant delivery of the sold item constitutes the basis in a sale contract in three ways. Following are citations from the writings of Ibn Al-Qayyim (may Allah have mercy on him) in this respect: a. Ibn al-Qayyim writes, "The reply to the claim that "the tangible asset of the contract ought to be instantly delivered" is that the asset of the contract is one which the Lawgiver has made obligatory through the contract or made binding by the contracting parties. In fact, neither the Lawgiver, nor the parties to the contract have made the instant delivery of the tangible asset of the contract obligatory. For at times the contracting parties mutually consent to having the tangible asset of the contract instantly delivered and at other times they stipulate delaying delivery of either the payment or the sold item. The seller may have a good reason for delaying delivery of the tangible asset of the contract, just as Jaabir (may Allah be pleased with him) did when the Prophet This is a type of business transaction which consists in selling the fruit on the trees for a period of one, two or three years even before it has made its appearance . (Translator's Note) 223 This is type of business transaction prevalent in pre-Islamic Arabia where the unborn child of a camel was sold while it was still in the womb. (Translator's Note) 224 See Mataalib Ulee an-Nuhaa, 3/78. 225 See Haashiyat Ibn 'Aabideen, 5/256-257; Al-Mubdi', 4/59; Sharh Muntahaa al-Iraadaat, 2/33; and Ma'oonat Ulee an-Nuhaa, 4/92. 222

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(may Allah's peace and blessings be upon him) had bought a camel from him and he (i.e. Jaabir) stipulated riding it to [his house] in Madeenah. 226 So can the Lawgiver possibly forbid one of the contracting parties from realising a certain interest while such interest by no means causes any harm whatsoever to the other party at all? Indeed, Jaabir (may Allah be pleased with him) was happy with the deal and the Prophet (may Allah's peace and blessings be upon him) contentedly consented to having the delivery of the camel he had purchased for jaabir be delayed until they reached Madeenah. Even if there were no textual evidence from the Sunnah to this effect, mere analogical reasoning would suffice to prove the permissibility of the suspended conditional sale. 227 b. Ibn al-Qayyim writes, "Leading Muslim jurists are unanimously agreed that it is permissible to sell the married slave-girl …and to delay delivery if this is the common practice and established customs ('urf) amongst people. Because they claim the established customs exclude the case where someone sells a massive store with numerous commodities which cannot be all delivered in one or even a few days, and it is not appropriate to collect all mounts of the land to transport these commodities at the same time. This claim of theirs actually has established massive evidence against them, for cases that are excluded by stipulated conditions are much more deserving than those excluded by established customs." 228 c. Ibn al-Qayyim also writes, "By your claim that the contract requires that delivery [of the sold article] ought to be made as soon as the contract is concluded, do you mean by this the requirement of 'aqd mutlaq229 or mutlaq al-'aqd 230 ? If you mean the former, that is absolutely Reported by Al-Bukhaaree, Book of Sale, 2/739; and Muslim, Book of Watering, 3/1221. See Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/10; and Ibn Taymiyyah, Al-Qiyyaas, p. 28. 228 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/11. 229 Al-'aqd al-mutlaq is the kind of contract in which no conditions are stipulated. Another kind is a conditional contract (al-'aqd al muqayyad), which may contain either positive or negative conditions. (Translator's Note) 230 A contract in general, irrespective of inclusion of any positive or negative conditions, is mutlaq al-'aqd, a term which includes both al-'aqd a!-mutlaq and al-'aqd al-muqayyad. Accordingly, al-'aqd al mutlaq and al-'aqd al-muqayyad differ from each other, yet are 226 227

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permissible. If, however, you mean the latter, that is not permissible. For mutlaq al-'aqd is divided into 'aqd mutlaq (one in which no conditions are stipulated) and 'aqd muqayyad (one in which conditions are stipulated), and the requirement of the 'aqd al-muqayyad (one in which conditions are stipulated) is that the conditions stipulated in it ought to be fulfilled. Similarly, the requirement of the 'aqd muqayyad ought to be honoured depending on the type of conditions stipulated in it, such as the stipulating of delaying payment, kiyaar ash-shart (Optional condition)231 , a guarantee (rahn) or a guarantor (dhameen). Thus, the requirement of the 'aqd mutlaq is totally different from that of the 'aqd muqayyad. In fact, delivery regarding assets and benefits is similar to that regarding debts. The Prophet (may Allah's peace and blessings be upon him) permitted the sale of fruits when they become fit for eating. He did not state that the requirement of the sale transaction is to deliver the sold fruits instantly; rather, he made the permissibility of delivery apply for as long as the fruits are ripe and fit for eating. 232 Third Evidence Stipulating suspension in the contracts of exchange results in failure of realising complete satisfaction with the concluded contract, as complete satisfaction comes only as a result of absolute certainty, and there is no absolute certainty in the case of the suspended conditional sale; for the future event upon which the sale transaction is made contingent may or may not take place at all. This being the case, there is no complete satisfaction as there is no absolute certainty regarding the occurrence or otherwise of the future event upon which the sale is made conditional. 233

two kinds that fall under mutlaq al-'aqd (like 'man' and 'woman' with reference to 'human beings. (Translator's Note) 231At the time of sale the buyer or seller can put a condition that he has an option to rescind the sale within the specific 4 days. This option is called khiyaar as-shart. (Translator's Note) 232Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/11. See also Ibn Taymiyyah, Majmoo' al-fataawaa, 29/155-156. 233 See Al-Qaraafee, Al-Furooq, 1/229; and Professor Abu Zahrah, Al-Milkiyyah Wa Nadhariyat al-'Aqd, p. 253.

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In refutation of this evidence, it has been argued that the suspended conditional sale does not contradict mutual complete satisfaction; for the contracting parties are completely satisfied with the concluded transaction and have expressed their mutual consent of making the transaction conditional on a future event. For instance, if the seller says to the buyer, "I will sell you this article if Ahmad is happy with [this transaction]", and it is possible to know when Ahmad will express his consent, the seller in this case has made his consent contingent on the fulfilment of the condition he has stipulated, namely Ahmad's consent. In this case, the seller chooses, of his own good pleasure, to give out what is in his possession, and the buyer chooses, of his own good pleasure, to give his money to the seller whenever the condition is fulfilled. In fact, willingness is part and parcel of satisfaction, as the Prophet (may Allah's peace and blessings be upon him) said, "It is forbidden to take anything from a Muslim's wealth unless he consents to it of his own free will." 234 Evidence Furnished by Proponents of the Second Opinion Those who hold that the suspended conditional sale is permissible provide the following evidence: First Evidence Allah the Almighty says, "He (i.e. the father of the two young women whose flocks Moses watered) said, 'I intend to wed one of these daughters of mine to you, on condition that you serve me for eight years; but if you complete ten years, it will be [grace] from you.'" 235 Proponents of this view argue by quoting Ibn al-Qayyim thus, "The stipulation of a future condition in the marriage of the daughter of this [righteous] man from Median is the most correct form of marriage contracts on the face of the earth, and this Islamic Law (Sharee'ah) of ours has not come with a ruling which abrogates it." 236 This evidence triggered off a number of responses including the following:

Reported by Al-Bayhaqee, As-Sunan al-Kubraa, hadeeth no. 11325. Surat al-Qasas, 28:27 236 See I'laam al-Muwwaqqi'een, 3/387. 234 235

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1. The well-known Qur'an exegete Al-Qurtubee writes, "Allah's statement "one of these daughters of mine" indicate that this is an offer and not a contract, for had it really been a contract, he (i.e. the father of the two young women) would have specified the one of two his daughters he wanted to marry off to Moses (peace be upon him). Indeed, notwithstanding the fact that scholars are not agreed regarding the permissibility of the sale contract in which the seller says to the buyer, 'I will sell you one of these two slaves of mine at such-and-such a price', they are unanimously agreed that such a statement is not permissible when it comes to marriage contracts, because it is an [optional] condition 237 , and no optional condition must be attached to the marriage contract. 238 This objection was refuted in the following two ways:  Al-Qurtubee's contention that scholars are unanimously agreed that the optional condition is not permissible in the marriage contract is not acceptable, for there is no unanimity of opinion in this respect, and Abul-'Abbaas Ibn Taymiyyah (may Allah have mercy on him) was of the opinion that kiyaar ash-shart (optional condition) is permissible in all types of contracts. 239  The objection to the suspended conditional agreement on the pretext that scholars are unanimously agreed that kiyaar ash-shart (optional condition) is impermissible in the marriage contract is to be seriously reconsidered; for it may be that such practice was allowed in Moses' law. 2. This evidence can only apply when we claim that Moses (peace be upon him) consummated the marriage only when he set out on his journey and spent the period upon which the agreement was contingent, namely eight years. On this basis, suspension was established, for the marriage agreement was made contingent on the completion of the period agreed on. However, the claim that the verse does not indicate This is called Khiyaar ash-shart, which is a right that is stipulated by one or both of the parties to a contract to cancel the contract for any reason for a fixed period of time. (Translator's Note) 238 See Al-Qurtubee, Al-Jaami' Li Ahkaam al-Qur'aan, 13/272. 239 See Al-Ba'lee, Al-Ikhtiyyaraat, p. 125. 237

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that Moses consummated the marriage as soon as the agreement was concluded does not prove that suspension is permissible because in this case it will be tantamount to stipulating conditions in the marriage contract. 240 In fact, when the evidence is shrouded in probability, it fails to be used as evidence. 3. There is nothing in the verse that points to suspending acceptance in the formal exchange which took place between the contractual parties indicating their willingness to enter into the contractual agreement and therefore constitutes the contract itself. Rather, it is an agreement with the stipulation that the dowry will be Moses' employment for eight years. Second Evidence There are two reports here: 1. 'Umar ibn al-Khattaab (may Allah be pleased with him) made a deal with the people that if he provided the seeds he would get half the yield, and if they provided the seeds, they would get so-and-so much.241 2. Naafi' ibn al-Haarith, the Caliph’s officer in Makkah, narrated that he purchased a prison house from Safwaan ibn Umayyah for four thousand dirhams on condition that if the caliph approved of it, the deal would be final; otherwise, he (i.e. Safwaan) would be given four hundred dirhams. 'Umar (may Allah be pleased with him) took it. 242 Proponents of the second opinion argue that 'Umar ibn al-Khattaab, the leader of the faithful, himself did what may support the view that the suspended conditional sale is absolutely permissible; for he made the agriculture sale contingent on a condition, and his Makkan officer Naafi' ibn al-Haarith purchased a prison house on condition that he would approve of it. These incidents were actually witnessed by the

240

See Al-Qurtubee, Al-Jaami' Li Ahkaam al-Qur'aan, 13/274.

Reported by Al-Bukhaaree, Book of Cultivation and Agriculture, 2.820; also reported by At-Tahhaawee in Sharh Ma'aanee al-Aathaar, Book odf Cultivation and Agriculture, 4/114; and Al-Bayhaqee in As-Sunan al-Kubraa, Book of Agriculture, 6/135. The isnaad (chain of transmitters) of the hadeeth is classified as 'authentic' (saheeh) by hadeeth experts. 242 Reported by Al-Bukhaare, Book of Disputes, 2/853; Al-Bayhaqee, As-Sunan al-Kubraa, Book of Sale, 6/34; and Ibn Hazm, Al-Muhallaa, 7/260. 241

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Prophet's companions, and none of them objected to what he had done.243 Third Evidence Making the sale contract contingent on a future event is something which people need and their interests require, and no mukallaf 244 can dispense with it. It is well-known that the harm that will be caused to people by considering such conditions impermissible is actually more serious and greater than the little harm which is feared to cause mutual hatred and 'consuming other people's property unjustly'. For the type of gharar (risk and uncertainty) involved is rather slight, and people urgently need to engage in such transactions. In fact, people's urgent need is given precedence over the slight, forgivable form of gharar, especially when the parties to the sale contract both benefit from the transaction. In fact, the Islamic Law (Sharee'ah) in its entirety, as Ibn Tamiyyah (may Allah have mercy on him) argues, is founded on the principle that a prohibited act becomes permissible when a certain harm, which is essentially prohibited, clashes with an urgent need that is preponderant and has more in its favour. Therefore, such an act is, a fortiori, permissible if the harm is non-existent or rather slight. 245 After examining the forgoing proofs and arguments furnished by proponents of both opinions, it seems to me (and Allah knows best) that the preponderant view is the second one, namely the one whose proponents hold that it is permissible to engage in the suspended conditional sale provided that a time limit should either be clearly expressed in the contract or known to the people based on the established customs in society. This is due to the cogent evidence they have advanced in addition to the fact that neither Almighty Allah nor His Messenger (may Allah's peace and blessings be upon him) make unlawful what people urgently need in their lives. Rather, these needs are lawful, and no one has the right to declare them unlawful. 246 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/388. A mukallaf is any morally responsible, mature and sane person. (Translator's Note) 245 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/387; and Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 155. 246 See Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee, p. 227. 243 244

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This is the view of the author of Mataalib Ulee an-Nuhaa247 as well as the view of Sheikh Muhammad ibn 'Uthaymeen (may Allah have mercy on him). The latter writes, "The correct view in this respect is that the suspended conditional sale is permissible; there is no objection to one's saying, 'I will sell you such-and-such an article if you bring me suchand-such a thing', but a time limit is to be specified here. He should rather say, 'I will sell you such-and-such an article if you bring me suchand-such a thing within three days, two days, or ten days', for example, so that the sale will not remain permanently suspended." 248

III. The Ruling regarding a Sale Contract with an Optional Condition249 This section consists of four parts: A. The Ruling regarding a Sale Contract with an Optional Condition Most Muslim jurists from the four schools of jurisprudence as well as others250 are of the opinion that the optional condition is permissible and that it does not contradict the requirement of the sale contract. In fact, some of them have mentioned that all Muslim scholars are agreed in this regard. These include An-Nawawee (may Allah have mercy on him) who said, "It is unanimously agreed that it is permissible." 251 Kamaal-udDeen ibn al-Humaam al-Hanafee (may Allah have mercy on him) also said, "There is a general consensus [among Muslim jurists] that the optional condition is permissible." 252

See Ma'oonat Ulee an-Nuhaa Sharh al-Muntahaa, 3/78. Ash-Sarh al-Mumti' 'Alaa Zaad al-Mustaqni', 8/250, Dar Ibn al-Jawzee edition. 249 The optional condition (Khiyaar ash-shart) is a right that is stipulated by one or both of the parties to a contract to cancel the contract for any reason for a fixed period of time. (Translator's Note) 250 See Al-Mansoot, 13/38; Tabyeen al-Haqaa'iq, 4/14; Al-Baajee, Al-Muntaqaa, 5/55; Mawaahib al-Jaleel, 4/409; Al-Umm, 7/105-10; Asnaa al-Mataalib, 2/50; Al-Majmoo', 9/223; Al-Mughnee, 6/38; and Al-Insaaf, 4/372. 251 See Al-Majmoo', 9/233. 252 See Fath al-Qadeer, 6/300; and Ibn al-Qattaan, Al-Iqnaa' Fee Masaa'il al-Ijmaa' 247 248

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However, the fact of the matter is that there is no general consensus on this matter; for Ibn Hazm adh-Dhaahiree (may Allah have mercy on him) opposed this thus, "Any sale which is concluded along with an optional condition for the buyer or the seller, both of them or for others, for an hour, a day, three days, or for a shorter or longer period, is invalid, whether or not they (i.e. contracting parties) choose to bring it into effect. If the buyer takes possession of it (i.e. the tangible asset of the contract) with the proprietor's consent and is unintentionally destroyed while it is still in his possession, he is not liable to anything. If, however, he takes possession of it without its proprietor's consent, following the decision of a judge or not, then this act of his amounts to usurpation (ghasb)253 and he is responsible for a compensation; and if he does something to it, then he is an offender and is also responsible for a compensation." 254 In fact, Ibn Hazm excludes only one form in the permissibility of the optional condition, namely, "If he says when he engages in selling or buying to the other party, 'No cheating' 255 , then he has the option to rescind the sale contract within three days and nights; if so he desires, he can return the tangible asset of the contract with a defect or not, with or without deception; and if so he desires, he can keep it. However, if the period of three days elapses, his optional condition is cancelled and he has to buy the item." He also writes, "If he cannot say laa khilaabah (i.e. no cheating, there should be no attempt to deceive) due to an impediment in his tongue or incorrectness in speaking Arabic, then he can pronounce it the way he can, to the best of his ability. If he still cannot do so, then he can say something equivalent in his language to 253In

the language of Islamic law, ghasb (usurpation) signifies the taking of property of another which is valuable and sacred without the consent of the proprietor. (Translator's Note) 254 See Ibn Hazm, Al-Muhallaa, 7/260. 255 The Arabic for this expression is Laa Khilaabah, and is mentioned in a hadeeth reported by Al-Bukhaaree on the authority of 'Abdullaah ibn 'Umar who said, "A man came to the Prophet (may Allah's peace and blessings be upon him) and told him that he was always deceived in business transactions. The Prophet (may Allah's peace and blessings be upon him) told him to say at the time of entering into a transaction, laa khilaabah 'No cheating, or there should be no attempt to deceive' (i.e. he has the right to return it if found undesirable)."

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the Arabic phrase laa khilaabah. If, however, he produces a different expression in Arabic, such as 'no fraud, 'no deception', 'no cunning, 'no harm', and the like, he will not enjoy the right of the optional condition given to the one who says laa khilaabah." 256 Attributions of varying statements to Sufyaan Ath-Thawree257 and 'Abdullah ibn Shibrimah 258 are also reported. Nonetheless, the preponderant view is that the optional condition is absolutely permissible for the following reasons: 1. We have already confirmed the permissibility of the conditions in the contract and the fact that only those of them that are forbidden or contravene the ruling Allah states in His Book are invalid, for conditions are originally and essentially valid. The erudite scholar Ibn al-Qayyim (may Allah have mercy on him) writes, "Any condition which contradicts Allah's rulings and contravenes the rules in His Book is undoubtedly invalid, be it what it may. Conversely, any condition [stipulated in the contract] which does not contravene His rulings nor contradict the rules in His Book, while the act stipulated can be left or done without the stipulation of such condition, this act becomes binding as a result of this condition." Highlighting this golden rule, he further writes, "Nothing can be excluded from these two matters, as long as they have been confirmed by textual evidence from Allah's Book and the Sunnah of His Messenger as well as the general consensus of the Prophet's companions. In fact, conditions may not be cancelled following sectarian views or jurisprudential opinions, for these cannot destroy a fundamental rule of the Islamic Law (Sharee'ah). Conditions with respect to morally responsible, mature and sane people259 is tantamount to vows as the rights of the Lord of the worlds; thus any act of obedience which can be carried out before taking a vow becomes obligatory following the making of the vow. Similarly, any condition which can be fulfilled

See Ibn Hazm, Al-Muhallaa, 7/316-317. See Bidaayat al-Mujtahid, 3/399; and Al-Muhallaa, 7/264. 258 Ibid. 259 Mukallafoon, sing. Mukallaf. (Translator's Note) 256 257

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without stipulating it becomes obligatory following the stipulation. Indeed, conditions make acts obligatory when rights clash. 260 2. 'Abdullaah ibn 'Umar who said, "A man came to the Prophet (may Allah's peace and blessings be upon him) and told him that he was always deceived in business transactions. The Prophet (may Allah's peace and blessings be upon him) told him to say at the time of entering into a transaction, laa khilaabah 'No cheating, or there should be no attempt to deceive' (i.e. he has the right to return it if found undesirable)." 261 Even though this hadeeth does not explicitly state the condition, it implicitly states that the stipulation of the condition does not contradict the object of the contract. 262 3. Abu Hurayrah (may Allah be pleased with him) narrated that the Prophet (may Allah's peace and blessings be upon him) said, "Do not tie up udders of camels and sheep, and he who buys them after that has been done has two courses open to him: after he has milked them he may keep them if he is pleased with them, or he may return them along with a saa'263 of dates if he is displeased with them. "264 4. Another narration reads, "Whoever buys a sheep which has been kept unmilked for a long period has the option of three days: He can keep it if so he wishes, or he can return it if so he wishes, but he should pay one saa' of dates for the milk, and not wheat." 265 This Prophetic reports make it clear that the Prophet (may Allah's peace and blessings be upon him) gives the person who buys a sheep or camel whose udder has been tied up (i.e. kept unmilked for a long time) the option to return them up to a maximum of three days after milking Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/302-303. Reported by Al-Bukhaaree, Book of Sale, 2/745; and Muslim, Book of Sale, 3/1165. 262 See Fath al-Qadeer. 6/300. 263 A saa' is a measure that is equal to about 3 kg. (Translator's note) 264 Reported by Al-Bukhaaree, Book of Sale, 2/755; and Muslim, Book of Sale, 3/1155. 265 Reported by Abu Daawood, As-Sunan, Book of Sale, 3/271; An-Nasaa'ee, Al-Mujtabaa, Book of Sale, 7/254. In fact, the wording in the hadeeth is his. The version reported by Abu Daawood was narrated on the authority of Ibn 'Umar, but the chain of transmitters (isnaad) includes 'Jumay' ibn 'Umayr who is categorized by hadeeth experts as 'weak'; the chain of transmitters in the hadeeth reported by An-Nasaa'ee is classified as 'good'. See Tuhfat al-Muhtaaj, 3/231; and At-Talkhees al-Habeer, 3/23. 260 261

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it. This indicates that the contract remains a sale contract along with the optional condition. Ash-Shaafi'ee writes, "The optional condition would have been deemed invalid because we deem a sale contract with an optional condition of less than three days invalid. However, given that Allah's Messenger (may Allah's peace and blessings be upon him) stipulated three days after the purchase of a sheep or camel whose udder has been tied up, and with reference to the narration to the effect that he stipulated three days for Hibbaan ibn Munqid for whatever [cattle] he had bought, we act on the dictates of the Prophet's decision regarding the period of time specified for the optional condition, and we do not exceed it…" 266 This is the view of Ash-Shaafi'ee (may Allah have mercy upon him) despite the fact he considers the optional conditions to be essentially invalid. However, Ibn Hazm's contends that any condition which is not mentioned in the Book of Allah or in the Sunnah of His Messenger is invalid, as evidenced by the Prophet's statement, "Any condition which is not in Allah's Book is invalid…" 267 Therefore, he argues, the optional condition is not mentioned as a valid condition in the Book of Allah the Almighty…Thus this condition is definitely invalid. This being the case, any contract whose validity is to be determined by the validity of the condition stipulated in it is certainly invalid if such a condition is invalid; hence the invalidity of the sale contract concluded along with an optional condition. 268 An in-depth discussion and refutation of Ibn Hazm's view on this matter has already been made, and there is no need to repeat it here.

B. The Ruling as to Stipulating an Optional Condition to Return the Old Item without Specifying a Period of Time A question arises here: If a person who wants to merchandise a certain commodity says to its proprietor, "I will buy this article on condition that I have the option to return it without specifying a certain

See Ash-Shaafi'ee, Al-Umm, 7/106. Reported by Al-Bukhaaree, hadeeth no. 2023, and Muslim, hadeeth no. 2763 268 See Ibn Hazm, Al-Muhallaa, 7/270. 266 267

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period of time"; will such an optional condition be unreservedly valid or will it be considered invalid unless a specific period of time is fixed? Two opinions have been expressed regarding this matter, which I will mention after clarifying that this issue differs from the one in which the buyer stipulates he will return the commodity if it does not sell well. The reason for this is because the present case consists of an optional condition without specifying or stipulating the mechanisation of the commodity. The question discussed in the first part of this section relates to stipulating the optional condition for merchandising the commodity or not, and there is a big difference between the two issues. Muslim jurists have expressed different opinions as to the stipulation of the optional condition without fixing a certain period of time, such as by saying, 'henever we want', whenever the buyer wants', 'I have the conditional optional' without fixing a certain period of time, and simply stipulating a period of time whose occurrence is not known, such as 'when Ahmad comes', 'when the season is over'. Will the contract in this case be valid or not? The following different opinions have been advanced: First Opinion Both the contract and the condition are invalid if no specific period of time is fixed. This is the view held by the Hanafites269 , the Shaafi'ites270 and one of the views adopted by the Hanbalites271 . These scholars, however, use different terms to refer to the condition of such a contract. The Hanafites use the term 'faasid' (incorrect, imperfect), while the Shaafi'ites and the Hanbalites use the term 'baatil' (void, invalid, of no legal force) on the basis of the difference between these terms in the contracts of exchange." 272 Some of their differences include the fact that the Hanafites contend that if the sale is definitively included within the three days following the agreement, it is valid; otherwise, the contract will be 'faasid'

See Badaa'i' as-Sanaa'i', 5/174 and 178; and Al-Fataawaa al-Hindiyyah, 3/38-39. See Rawdhat at-Taalibeen, 3/444-445; Al-Majmoo', 9/19; and Asnaa al-Mataalib, 2/50-51. 271 See Al-Mughnee, 6/43; Al-Insaaf, 4/373; and Ash-Sharh al-Kabeer, 11/287. 272 See Badaa'i' as-Sanaa'i', 5/303 and 305; and Tabywwn al-Haqaa'iq, 3/113. 269 270

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(imperfect).273 The Shaafi'ites and the Hanbalites argue that the contract in this case ought to be validated anew. Second Opinion The contract is valid, but an infinite or unspecified optional condition entitles the judge to decide on a certain period of time, depending on the difference between the tangible assets of the contract. Examples include one or two days for deciding on a piece of cloth, about a week for deciding on a slave-girl and about a month for deciding on a house.274 The view adopted by Ibn Taymiyyah (may Allah have mercy upon him) is that if the parties to the contract stipulate an infinite period of time, the contract is valid but the optional condition to rescind the sale ought to be within three days. The seller, he argues, has the right to dissolve the sale contract if he returns the money; otherwise, he has no right to do so.275 Third Opinion The contract is valid, but the optional condition is invalid. This is one of the views of the Hanbalites which was adopted by the author of AlIqnaa'.276 It is also the view of Ibn Abee laylaa. 277 Fourth Opinion Both the contract and the unspecified optional condition are valid, and both contracting parties can infinitely maintain such optional condition or interrupt it. This is one of the views of the Hanbalites278 , the view adopted by Ibn Shibrimah and the view which Ibn Rushd attributes to Sufyaan ath-Thawree. Evidence Furnished by Proponents of these Opinions Evidence Supplied by Proponents of the first Opinion First Evidence The optional condition has been proved to contradict the contract requirement without even resorting to analogical reasoning; in fact, the optional condition prevents the conclusion of the contract as to its See Al-Mabsoot, 13/42; and Badaa'i' as-Sanaa'i', 5/174 and 178. See Ibn Rushd, Al-Muqaddimaat, 5/420; and Bidaayat al-Mujtahid, 3/401. 275 'Alaa'-ud-Deen al-Ba'lee, Al-Ikhtiyyaraat, p. 125. 276 See Kash-shaaf al-Qinaa' Fee Sharh al-Iqnaa', 3/202-203; and Ash-Sarh al-Kabeer, 11/288. 277 See Al-Mughnee, 6/43; and Ash-Sharh al-Kabeer, 11/287. 278 See Al-Mughnee, 6/43; Ash-Sharh al-Kabeer, 11/287; and Sharh az-Zarkashee, 3/404. 273 274

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ruling, which naturally renders the contract null and void. However, because it is permissible through textual evidence, we should keep it as it is, namely for three days without contradicting the period specified by textual evidence. 279 In response to this evidence, it has been argued that this proof is based on the erroneous view that the contract stipulated in the contract—despite the benefits it may bring about for the contracting parties—contravenes the objective and the requirement of the contract, and that the optional condition is no exception. Therefore, it is obvious that this is wrong, for the condition stipulated in the contract does not invalidate the contract, as we have demonstrated earlier on. Second Evidence The stipulation of a conditional option in the contract constitutes a form of gharar (risk and uncertainty), and the Sunnah only allows it because people need it; for the buyer may not be certain as to the commodity he has purchased, so he chooses to test it to see if it is useful or not, and whether it is really worth the amount he has paid for it, amongst other things. That is why he is granted the optional condition for his own benefit. However, stipulating an optional condition for an infinite period of time constitutes an extreme form of ignorance and uncertainty (jahaalah), for the Prophet (may Allah's peace and blessings be upon him forbade gharar280 .281 Third Evidence The stipulation of an infinite optional condition is bound to prevent the other party from infinitely disposing of the tangible asset of the contract, which obviously contradicts the objective and requirement of the contract. As an example, the seller says to the buyer, "I will sell you such-and-such an article on condition that you do not dispose of it." 282 In response to this evidence, it has been argued that it is the buyer who has the right to stipulate the time of the optional condition, and See Al-Kaasaanee, Badaa'i' as-Sanaa'i', 5/174; Al_majmoo', 9/191; and Al-Mabsoot, 13/40-41. 280 Saheeh Muslim, Book of Sale, hadeeth no. 2783. 281See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/418; Asnaa al-Mataalib, 2/50; and Al-Mughnee, 6/43. 282 See Al-Mughnee, 6/43; and Rawdhat at-Taalibeen, 3/448. 279

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thus he is entitled to dispose of the tangible asset of the contract if the optional condition has been stipulated by him 283 ; therefore what you claim only reflects your opinion in this matter, and those who differ with you in this regard do not have to adopt it. Furthermore, denial of disposal of the tangible asset of the contract applies only if both parties or just the seller stipulate the optional condition; as for the buyer, he is not to dispose of it; and if he does, then this is an indication that he has accepted the sale and given up his own optional condition. Fourth evidence The Hanafites view that either the sale contract is definitively finalised during the three days following the sale agreement or the condition should be dropped. They contend that by dropping the optional condition which contradicts the contract requirement anyway or the period exceeding three days, the incorrect (faasid) condition becomes like it has never been stipulated. Furthermore, by dropping it, it becomes clear that the optional condition has only been stipulated up to this period [of three days]; and because it is not the optional condition that renders the contract invalid but rather exceeding the th ree-day period, dropping the condition before the fourth day eliminates the prohibition which makes the contract void before the onset of the fourth day. Therefore, the invalidity is not in the contract itself. 284 In response to this evidence, it has been argued that the claim that it is not the optional condition that renders the contract invalid but rather exceeding the three-day period is rather groundless. In reality, it is the condition which is invalid and it is stipulated in the contract. Besides, a contract can either be valid or void: If it is valid along with the condition, it does not become void as a result of the stipulation the contracting parties make; however, if it is void, it cannot become valid, as in the case where someone sells one dirham for two dirhams and then drops one of them.285 See Al-Mubdi', 4.71; and Rawdhat at-Taalibeen, 3/448. See badaa'i' as-Sanaa'i', 5/178; fath al-Qadeer, 6/303. Some Hanafite jurists such as alKarkhee maintain that sale with an invalid optional condition amounts to a suspended contract ('aqd mawqoof); thus if the contracting parties drop the condition before the end of three days from the time of making the agreement, the contract is valid. 285 See Al-Mughnee, 6/43. 283 284

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Evidence Supplied by Proponents of the Second Opinion The optional condition, they argue, applies to the tangible asset of the contract (mabee'); therefore, a period of time ought to be fixed so the asset may be returned or the sale rescinded within this period of time. This, however, differs depending on the nature of the tangible asset of the contract. In fact, it seems that the text [of the hadeeth] implies this understanding, as it is one of those textual proofs, [in the terminology of experts in sources of Islamic jurisprudence], whose specific ruling actually implies a general one286 . Two responses have been made in refutation of this evidence: 1. The claim that the prevailing customs ('urf) should be considered as to stipulating a specific period of time is baseless, for the prevailing customs must not be considered when it comes to optional conditions. 287 In fact, one of the conditions for considering the prevailing customs and practices regarding any act is that such customs and practices are prevailing and recognized by all people in society, or people in a particular region or amongst experts in a certain field or profession. People's knowledge of such prevailing customs means, as some jurists define it, all persons concerned practise them at all times, and not observing them at times and neglecting them at other times. 288 2. Acting on the prevailing and established customs becomes a binding evidence to be followed only if it does not contradict a condition stipulated by any of the two contracting parties. 289 If one of the prevailing customs amongst people is to have the option to keep or return the tangible asset of the contract within a certain period of time, and one of the contracting parties stipulates that he has the optional condition to return it whenever he wants, then such a condition contravenes the said prevailing custom, in which case the custom is of no consequence and the agreement and condition agreed upon are to be honoured. See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/418; and Bidaayat alMujtahid, 3/402. 287 See Al-Mughnee, 6/43. 288 See Abu Nujaym al-hanafee, Al-Ashbaah Wan-Nadhaa'ir, p. 94; and Dr. Ya'qoob al-baa Husayn, Qaa'dat al-'Aadah, pp. 63-64. 289 See Durar al-Ahkaam, 1/62. 286

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Ibn Taymiyyah (may Allah have mercy on him) supplies the evidence that if one or both contracting parties stipulate an optional condition without fixing a certain period of time, the contract is valid and the optional condition to rescind the sale lasts for three days only. 'Abdullaah ibn 'Umar (may Allah be pleased with him) said, "I heard a man with a speech impediment who came to the Prophet (may Allah's peace and blessings be upon him) and complained to him that he was always deceived in business transactions. The Prophet (may Allah's peace and blessings be upon him) told him, 'Say at the time of entering into a transaction, laa khilaabah (No cheating, or there should be no attempt to deceive). And then you have the choice to return any article you have bought within three days. If you are happy with it, keep it; otherwise, return it.'" 290 The words 'laa khilaabah' (no cheating, there should be no deception) in the hadeeth indicate that the stipulation of the optional condition lasts for three days, as evidenced by the Prophet's statement 'and then you have the choice to return any article you have bought within three days'. Therefore, if the contracting parties use these words or something with a similar meaning when stipulating an unidentified or infinite optional condition, then they are to be made to make it up to three days, as evidenced by the abovementioned hadeeth.291 In response to this argument, however, it has been contended that this applies only in the case of the two contracting parties who utter these words or something similar in meaning while they know what they mean. Therefore, whatever is known according to the prevailing customs is similar to whatever is stipulated; if, however, they are ignorant of the ruling as to uttering such words, then they cannot Reported by Al-Bayhaqee, As-Sunan al-Kubraa, Book of sale, 5/273; and AdDaaraqutnee, As-Sunan, 3/55. Imaam Ahmad also reported a similar report in AlMusnad, 10/283, and so did Al-Humaydeein Al-Musnad, hadeeths no. 6622. They all reported it on the authority of Muhammad ibn Ishaaq who reported it from Naafi' from 'Abdullaah ibn 'Umar. Muhammad ibn Ishaaq is known for narrating 'good' reports whenver he says, "I heard it fromso-and-so' as we have in the present hadeeth. The chain of transmitters (isnaad) of this report is also classified by hadeeths experts as 'good'. See At-Talkhees al-Habeer, 3/12. 291 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 9/224. 290

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stipulate any optional condition whatsoever, just as An-Nawawee292 has stated. Thus, if someone who is ignorant cannot stipulate any condition whatsoever, then the person who knows the ruling but means more than three days cannot, a fortiori, stipulate any optional conditions either. Evidence Supplied by Proponents of the Third Opinion Proponents of this opinion contend that the contract is valid while the optional condition is void and cite the evidence advanced by proponents of the first opinion but they argue that such evidence clearly proves that the optional condition is invalid as it constitutes an extreme form of uncertainty and risk-taking (gharar). They also contend that the contract does not become void for the following reasons: 1. The hadeeth narrated on the authority of 'Aa'ishah (may Allah be pleased with her) who said, "Bareerah came to me and said, 'My people (masters) have written the contract for my emancipation for nine awaaq [of gold] to be paid in yearly instalments —one uqiyyah per year, so help me.'" 'Aa'ishah said [to her], "If your masters agree, I will pay them the whole sum provided the waalaa' will be for me." Bareerah went to her masters and told them about it, but they turn down the offer; so she left them while Allah's Messenger (may Allah's peace and blessings be upon him) was sitting. She said to him, "I presented the offer to them, but they refused unless the waalaa'293 would be for them." When the Prophet heard that and 'Aa'ishah told him about It, he said to her, "Buy Bareerah and let them stipulate that her waalaa' will be for them, as the waalaa' is for the manumitted." 'Aa'ishah did so. After that Allah's Messenger (may Allah's peace and blessings be upon him) got up amidst the people, glorified and praised Allah and said, "What is wrong with some people who stipulate things which are not in Allah's Laws? Any condition which is not in Allah's Book is invalid even if there were a Ibn Taymiyyah, Majmoo' al-Fataawaa, 9/224. Walaa' (Literally 'proximity, kin, friendship') is a peculiar relationship voluntarily established and which confers a right of inheritance on one or both parties connected. It is of two kinds: 3. Walaa' al-'Ataaqah: Relationship between a master and a manumitted slave, in which the former inherits any property the latterc may acquire after emancipation. 4. Walaa' al-Muwwalaat: The connection arising out of mutual friendship between a Muslim and a convert. (Translator's Note) 292 293

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hundred such conditions. Allah's rules are the most valid and Allah's conditions are the most solid. The walaa' is for the person who manumits [the slave]." 294 See also the arguments employed regarding this haddeth. 2. They also argue that the contract is concluded along with all its fundamental elements, and the optional condition is only additional; therefore, if the condition becomes invalid for some reason and is dropped, what is invalid is dropped but the contract along with its fundamental elements is maintained, hence its validity even without making any stipulation whatsoever. 295 Opponents of this view assert that this opinion needs to be reconsidered; for the buyer has only consented to pay the money with the option of recovering the payment he has made, and the seller has only consented to give the tangible asset of the contract because of the buyer's optional condition to rescind the sale. Therefore, if we consider the sale contract valid, we deprive each of the two contracting parties of they own possessions without their consent and we impose on them something they are not happy with. Besides, because the condition takes part of the price, if we drop the condition, the part of the price taken has to be recovered; in this way, the price is unidentified, and thus any element of lack of knowledge regarding the price renders the contract void.296 This argument was refuted thus: If one of the two contracting parties shows dissatisfaction as a result of the invalid optional condition, he can redress this by granting him the option to rescind the contract. That is why scholars emphasize that the contracting party whose benefit is not realised as a result of the invalidity of the condition can redress this by rescinding the contract. 297 Evidence Supplied by Proponents of the Fourth Opinion Those who maintain that both the contract and the unspecified optional condition are valid advance the following evidence in support of their opinion: Reported by Al-Bukhaaree, hadeeth no. 2023, and Muslim, hadeeth no. 2763 See Al-Mughnee, 6/44; and Ash-Sharh al-Kabeer, 11/288. 296 Al-Mughnee, 6/44; and Ash-Sharh al-Kabeer, 11/288. 297 See Kash-shaaf al-Qinaa', 3/203. 294 295

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First Evidence 'Amr ibn 'Awf al-Muzanee (may Allah be pleased with him) narrated that Allah's Messenger (may Allah's peace and blessings be upon him) said, "Muslims ought to honour the conditions [they make] except those conditions that make something lawful impermissible or something unlawful permissible." 298 This hadeeth, they argue, show that such conditions which one or both contracting parties stipulate are not forbidden because they do not contravene any textual evidence from the Qur'an or the Sunnah. Therefore, they are permissible. In fact, the parties to the contract stipulate only those conditions which are bound to realise a certain benefit for them, and conditions are essentially valid. This argument was refuted in a number of ways including the following: 1. The hadeeth is classified as 'weak' (dha'eef) because its chain of transmitters (sanad) includes Katheer ibn 'Abdullaah ibn 'Amr ibn 'Awf about whom Imaam Ahmad said, "He is munkar al-hadeeth,299 and his narrations are not to be trusted." 300 Ash-Shaafi'ee also said about him, "He is one of the liars" and "one of the leading notorious liars." 301 In response to this, it has been argued that At-Tirmidhee did classify this hadeeth as 'saheeh' (authentic). Besides, in the course of discussing this hadeeth, its chains of transmitters and the other Prophetic traditions that support it, Ibn Taymiyyah (may Allah have mercy upon him) writes, "Even though one of these chains of transmitters may be weak, when they do come together from different ways, they lend support to

Reported by At-Tirmidhee in Al-Jaami', 3/634; and Ibn Maajah in As-Sunan, 2/788 from Katheer ibn 'Abdullah ibn 'Amr ibn 'Awf from his father from his grandfather from the Prophet (may Allah's peace and blessing be upo n him). Abu Daawood also reported it in As-Sunan, 3/304, on the authority of Abu Hurayrah. The chain of transmitters (sanad) in Abu Daawood's report includes Al-Waleed ibn Rabaah. 299 Munkar (denounced) is a hadeeth which is reported by a weak narrator, and whose narration goes against another authentic hadeeth. (Translator's Note) 300 See Mawsoo'at Aqwaal al-Imaam Ahmad Fee Rijaal al-Hadeeth Wa 'Ilalahu, 3/197, Dar 'Ilm al-Kutub edition. 301 See Tahdheeb at-Tahdheeb, 3/462. 298

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one another." 302 In addition, the views of some leading jurists do not constitute binding evidence against the views of others. In refutation of this response, it has been argued that different criticisms levelled by hadeeth scholars and experts at hadeeth narrators are acceptable if such hadeeth narrators are not known for telling lies. In fact, numerous leading hadeeth experts have accused Katheer ibn 'Abdullaah of telling lies. Ash-Shaafi'ee and Abu Daawood said about him, "He is one of the leading notorious liars." 303 Abu Zar'ah ar-Raazee also said, "The narrations of Katheer ibn 'Abdullah from his father from his grandfather are rather weak and smack of lying." 304 Ibn 'Abdul-Barr (may Allah have mercy on him) went as far as to say that all hadeeth experts are agreed that he is notoriously weak. 305 In fact, some hadeeth experts have also accused At-Tirmidhee of being too lenient and too tolerant towards the transmitter in question who is notorious for lying. Adh-Dhahabee (may Allah have mercy on him) said, "At-Tirmidhee has reportedly been quoted as classifying the hadeeth 'Conciliation between Muslims is permissible' as 'saheeh' (authentic); therefore, AthThirmidee's classification of Prophetic traditions as authentic is not to be depended on." 306 Al-Haafidh Ibn Hajar made excuses for At-Tirmidhee after the latter's classification of the hadeeth as 'authentic' thus, "Maybe he (i.e. At-Tirmidhee) took into account the large number of the chains of transmitters [who narrated the hadeeth]." 307 2. Even if the hadeeth were to be categorized as 'authentic', it could by no means be used as evidence of the validity of unknown optional condition, as the act of stipulating an unknown optional condition amounts to risk-taking and uncertainty (gharar). Therefore, even in the highly unlikely event that the hadeeth is 'authentic', it ought to be used to disallow stipulating such unjust conditions, not declaring them permissible. See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/147. See Meezaan al-I'tidaal, 3/407. 304 See Al-Jaami' Fee al-Jarh Wat-Ta'deel, 2/405. 305 See Tahdheeb at-tahdheeb, 3/463. 306 See Meezaan al-I'tidaal, 3/407. 307 See Buloogh al-Maraam Min Adillat al-Ahkaam, p. 183, Mu'assasat al-Kutub athThaqaafiyah Publishers, revised by Muhammad Haanid al-Fiquee. 302 303

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Second Evidence People in general need such transactions along with the conditions they stipulate, and the Lawgiver does not prohibit things which people need in their transactions owing to a slight form of gharar (risk and uncertainty) that might result from such transactions. Rather, He permits anything people need in their dealings; an example of this is the permissibility of selling dates before their benefit is evident to be kept on the date palm trees until picking season [without causing any harm to the seller].308 In response to this evidence, it has been argued that it is true that what people need in their transactions should not be made impermissible owing to a slight form of gharar (risk and uncertainty) that might result from such transactions. However, what is to be done regarding those transactions which involve a great deal of gharar and disputes as a result of failure to fix a period of time for the optional condition, for the price of the commodity, for instance, might fall sharply compared with the price at the time of making the agreement? After such a lengthy discussion of the various opinions and the proofs proponents of these opinions have furnished in support of their views as well as the responses made in refutation of such opinions by their opponents, it becomes clear (Allah knows best) that the view which has more in its favour is the third one, namely that the contract is valid while the optional condition stipulated is void, and that the party whose benefit is not realised as a result of dropping the condition can redress this by rescinding the contract. However, it is worth noting that the party that stipulates the indefinite or unspecified optional condition is the buyer. If this buyer concludes a contract with the seller and stipulates this optional condition without specifying a period of time and then comes later to rescind the contract after the price of the commodity has changed, people have done away with it, remain unsold, or simply the period is so long that it has undergone some change, and we say that the contract is valid but the condition is invalid and that the party whose benefit is not realised as a result of dropping the condition can redress this by rescinding the contract, the condition will in this case 308

See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/227.

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be confirmed for the buyer, either by executing the optional condition or employing the restrictive condition "the party whose benefit is not realised as a result of dropping the condition can redress this by rescinding the contract". Therefore, I believe (Allah knows best) that this restrictive condition should not be absolute. Rather, we see if the period of time is not very long by the standards of the prevailing customs ('urf) in society, in which case the commodity will not undergo any change and the buyer will not be subject to any harm which is not legally admissible, then we can apply this restrictive condition; otherwise, the contract will still be valid but the condition should be dropped. The rationale for such a procedure is that the buyer's claim to drop the condition due to the harm to which he may be subject is not more appropriate and more deserving of the seller's claim to rescind the contract owing to the harm top which he may be subject. As the juristic principles go, "Adh-dhararu laa yazoolu bi mithlihi" (One wrong must not be removed by another wrong)309 and "Al-kharaaju bidh-dhamaan310 "311

C. The Period of the Optional Condition312

Muslim jurists have expressed the following three opinions regarding this issue: First Opinion: This period should be limited to three days and not more than that. This is the view of Abu Haneefah 313 , Ash-Shaafi'ee314 , AlSee Ibn As-Subkee, Al-Ashbaah Wan-Nadhaa'ir, 1/41; Ahmad az-Zarqaa, Sharh alQawaa'id al-Fiqhiyyah, p. 195 and Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/189. 310 This means whoever is responsible for damage or loss of an asset, deserves to receive any earning, generated by that asset. Therefore, if a person buys a house and rents it, then had to return it back because of a defect in the house, that person is the r ightful owner of the rent paid to him during that period. This is because if anything goes wrong with the house during that period it would be his responsibility. (Translator's Note) 311 See Imaam Mansoor as-Sam'aanee, Qawaati' al-Adillah Fee al-Usool, 1/194; and 'AbdurRaheem al-Asnawee, At-Tamheed, 1/410. 312 Again, the optional condition (khiyaar ash-shart) refers to condition the buyer or seller stipulates at the time of sale that he has an option to rescind the sale within a certain period of time. (Translator's Note) 313 See Badaa'i' as-Sanaa'i', 5/174 and 178; Al-Fataawaa al-Hindiyyah, 3/38-39; and AlMabsoot, 13/40-41. 314 See Al-Majmoo', 9/191; and Asnaa al-Mataalib, 2/50-51. 309

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Awzaa'ee315 , Ibn Shibrimah 316 and Zafar from amongst the Hanafites317 (may Allah have mercy upon them all). Second Opinion: The period is to be estimated depending on the difference between the various assets of the contract; if the asset of the contract is a piece of cloth, for instance, then a period of one or two days is stipulated; and if it is a house, then a period of approximately a month may be stipulated. However, a long period of time which exceeds the period that ought to be fixed for the asset in question must not be stipulated. This is the view of Imaam Maalik (may Allah have mercy on him).318 Third Opinion: It is allowable to stipulate an optional condition to rescind the sale contract within a specific period of time to be agreed upon by the contracting parties, whether such a period is long or short. This is the view of the Hanbalites319 , and it was also adopted by Abu Yoosuf and Muhammad ibn al-Hasan from amongst the Hanafites.320 The evidence furnished by proponents of the first and second opinions have already been discussed at-length, and there is no need to present it here again. However, the preponderant view is the third one for the following reasons: 1. Optional conditions are originally and essentially valid and are to be honoured, unless otherwise prohibited by textual evidence [from the Qur'an or the Sunnah]. In fact, optional conditions are some of the things which Almighty Allah has entirely left to the contracting parties to decide on for their own benefit. 2. On the strength of the permissibility to stipulate an optional condition within three days, it is also permissible to extend this period because the reason behind such permissibility is people's need for stipulating conditions. The buyer may not be certain as to the usefulness of what he has purchased and would like to check it out and see for himself whether it is useful or not; or he may need to seek an expert's See Al-Majmoo', 9/191. Al-Majmoo', 9/191. 317 See Badaa'i' as-Sanaa'i', 5/174; and Al-Mabsoot, 13/41. 318 See Bidaayat al-Mujtahid, 3/400-401. 319 See Al-Mughnee, 6/38-39; and Kash-shaaf al-Qinaa', 3/202. 320 Badaa'i' as-Sanaa'i', 5/174; and Al-Mabsoot, 13/41. 315 316

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opinion before he makes a final decision regarding the sale agreement — all this for his own benefit. It could also be the case that he may not find out about the usefulness of the asset of the contract until after three days; therefore, persistently sticking to a period of three days which must not be exceeded requires cogent textual evidence. 3. In the estimation of the contracting parties, because such periods of time only supplement the contract, they amount to postponing the sale contract. 321

D. The Ruling as to the Stipulation of an optional Condition regarding a Specific Article of Sale

Contracting parties in tasreef contracts generally have recourse to stipulating optional conditions regarding specific assets, as the buyer more often than not cannot merchandise all the articles he has purchased. The question that arises here is: Can he possibly stipulate an optional condition regarding specific items, or does the optional condition apply to the whole commodity? Also, what will the case be whether or not he makes a stipulation to this effect? In reply to this question, scholars have expressed three opinions, as follows: First Opinion The optional condition regarding a specific asset is invalid and consequently renders the contract null and void. This is the view of the Hanafites322 , the Shaafi'ites323 and one of the views adopted by Imaam Ahmad324 . The Hanafites, however, argue that invalidity applies only if the items of sale are dissimilars325 ; if, however, they are similars326 , the option is certainly valid. 327 See Al-Mughnee, 6/39. See Al-Mabsoot, 13/67-68; Tabyeen al-Haqaa'iq, 4/20; Al-Bahr ar-Raa'iq, 6/23 and Haashiyat Ibn 'Aabideen, 4/584-585. 323 See Rawdhat at-Taalibeen, 3/445; and Al-Ghurar al-Bahiyyah Sharh al-Bahjah alWardiyyah, 2/430. 324 See Al-Mughnee, 6/40/43. According to ImaamAhmad's school of jurisprudence, there are two opinions regarding the validity or invalidity of the contract in case the optional condition becomes invalid. 325 A very important distinction of things in the sale contract is that between the so-called mithlee (similars) and qeemee (dissimilars), the former are things which, when they 321 322

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The author of Adh-Dhur al-Mukhtaar writes, "If [someone] sells two slaves on condition that he has the right to impose a condition regarding one of them; ff he states the price of each one of them and then specifies the one regarding whom he intends to stipulate a condition, the sale agreement is valid by reason of his knowledge of the asset of the contract as well as the price; if, however, he specifies the one regarding whom he intends to stipulate an optional condition without stating the price, or if he just specifies the one regarding whom he intends to stipulate an optional condition or just states the price, the condition is not valid." 328 Commenting on the above, Ibn 'Aabideen (may Allah have mercy on him) writes, "By the two slaves, the author means they are 'dissimilars', as opposed to one 'dissimilar' or two 'similars'; for if he stipulates an optional condition regarding half of a 'dissimilar' asset, the condition is certainly valid; it is also valid in the case of two 'similars' as there is no difference whatsoever." 329 Despite the fact that the Hanafites contend that the optional condition regarding a specific asset is invalid if the asset regarding whom the optional condition is not stipulated, or as a result of not clearly stating the price of each one of them, they do, however, regard the condition valid by way of istihsaan330 if the asset consists of 'similars' on condition that they do not exceed three in total. The author of Al-Mabsoot writes, "If [someone] buys two pieces of cloth, each of which for ten dirhams with the stipulation that he has three days to decide on which one to keep and which one to return, we deem the contract valid by way of istihsaan. The same applies to a maximum of happen to perish, are to be replaced by an equal quantity of something similar to them; and the latter are things which, in the same circumstances, are to be replaced by their value. Because these two classes are aptly styles 'si milars' and dissimilars' by Hamilton, I find them appropriate to use in this translation. ((translator's Note) 326 Refer to the previous footnote. (Translator's Note) 327 See Al-Misbaah al-Muneer, 2/629; and Dr. Nazeeh Hammaad, Mu'jam al-Mustalahaat al-Fiqhiyyah Fee Lughati al-Fuqahaa', pp. 280-298. 328 See Haashiyat Ibn 'Aabideen, 4/584-585. 329 See Adh-Dhur al-Mukhtaar along Haashiyat Ibn 'Aabideen, 4/584-585. 330 This implies the rejection of qiyaas (analogical reasoning) and the admission of the discretion or judicial preference. (Translator's Note)

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three pieces of cloth. If, however, the number of these items exceeds three, the contract is null and void." 331 Second Opinion It is permissible to stipulate an optional condition regarding one of the two items of which the asset consists if the seller clearly states the price of each item of the asset. This is the view of the Maalikites332 and is also the view adopted by the Hanafites regarding 'similars'.333 The author of Al-Mudawwanah writes, "If [the buyer] stipulates — when he purchases two pieces of cloth or two slaves from you — that he will return one of them in such a state that the piece of cloth is rather worn or the slave's price dropping in value by half and give you half the price, then this is not objectionable, for in this case you have sold one of the items and delayed the other one for the price which remains in the possession of the buyer. This is absolutely acceptable." 334 Third Opinion The condition is invalid, but the contract is void. This is the view of the Hanbalite jurists (may Allah have mercy on them all). 335 Evidence Furnished by Proponents of these Opinions Evidence Furnished by Proponents of the First Opinion Those who maintain that both the condition and the contract are invalid advance the following evidence in support of their view: 1. The tangible asset of the contract is not known, for only one of the two items of the asset —which are different in value—will be sold; therefore, this element of uncertainty and lack of knowledge regarding items which are different in value renders the contract null and void. 336 2. Because the tangible asset of the contract is not known, this is bound to lead to disputes, for one of the contracting parties may require the opposite of what the other requires and claims that he is the party entitled to the optional condition; or it may be the case that the party entitled to the optional condition demands that one of the two items of See Al-Mabsoot, 13/55; and Haashiyat Ibn 'Aabideen, 4/584. See Al-Mudawwanah, 3/208; and Sharh al-Kharshee, 5/;123. 333 See Haashiyat Ibn 'Aabideen, 4/584. 334 See Al-Mudawwanah, 3/208. 335 See Al-Mughnee, 6/40; and Kash-shaaf al-Qinaa', 3/205. 336 See Al-Mabsoot, 13/55; Al-Ghurar al-Bahiyyah, 2/430; and Al-Mughnee, 6/40. 331 332

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the asset be returned, and the other party claims that the item in dispute is not the one regarding which the optional condition is stipulated. 337 Evidence Furnished by Proponents of the Second Opinion The Maalikite jurists consider the optional condition here permissible for the following reasons: 1. Because this amounts to selling one item of the asset and postponing the other item until the end of the optional condition period at a known price338 ; therefore, the element of uncertainty and lack of knowledge is rather slight and has little effect in addition to people's urgent need for stipulating such conditions. "[A man] may want to purchase some clothes for his children and he does not like to take them to the market, nor does the seller want to hand over the clothes to him without a contract; in this case, he feels the need to enter into an agreement by stipulating an optional condition." 339 2. Besides, the element of uncertainty and lack of knowledge regarding the tangible asset of the contract is not that big because the characteristics and the value are both known; thus, the difference between the items of the asset with the knowledge of the characteristics of these items and their price is deemed slight, and is similar to selling the asset with a guarantee. 3. Furthermore, most items of sale in the markets fall in the category of 'similars', whose parts and components are similar in such a way that they can replace one another without any significant difference. For instance, if [someone] buys clothes for his children and stipulates two or three months for the optional condition and wants to return the items before the end of the stipulated period, it is clear that such items are not, for the most part, dissimilar. In fact, people need to engage in such forms of transactions; moreover, it is well-known that the harm that will be caused to people by considering such conditions impermissible is actually more serious and greater than the slight harm which is feared to cause mutual hatred and 'consuming other people's property unjustly'; in reality, the Islamic Law (Sharee'ah) in its entirety is See Al-Mughnee, 6/40. See Al-Mudawwanah, 3/208. 339 See Al-Mabsoot, 13/55. 337 338

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founded on the principle that a prohibited act becomes permissible when a certain harm, which is essentially prohibited, clashes with an urgent need that is preponderant and has more in its favour. Therefore, such an act is, a fortiori, permissible if the harm is non-existent or rather slight.340 Evidence Furnished by Proponents of the Third Opinion The Hanbalite jurists hold that the optional condition is invalid and advance the same evidence furnished by proponents of the first opinion, but they argue that the invalidity of the condition does not render the contract void. I have already cited this body of evidence more than once, and there is no need to repeat it here. It remains to be mentioned, though, that of all three opinions, the second one has more in its favour as its proponents have furnished the most cogent evidence which outweigh the evidence provided by the proponents of the other two opinions. Allah knows best.

The Ruling as to Delegating Others to Sell Something for a Known Price and Giving the Broker the Amount Exceeding the Fixed Price As an example of this kind of transaction, as I have already mentioned, the owner of the commodity says to the store owners, "Sell such-and-such a commodity for SR 100 and whatever more you get is for you." Another example is when he says to a broker, "Sell the article of SR 10; and if you get more, the profit will be divided between us", in which case the broker's remuneration will constitute part of the extra profit that exceeds the amount fixed. Scholars have expressed the following two different opinions regarding the ruling of this form of transaction: First Opinion Some scholars contend that this form of transaction is not valid and the broker should only be entitled to ujrat al-mithl (prevailing /standard price)341 . This is the view of the Hanafites342 and the Maalikites343 . Ibn 340 341

See Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 155. This means the wages prevalent in the market for a certain service. (Translator's Note)

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Qudaamah attributed it to Ash-Shaafi'ee344 and Ibn Hajar also attributed it to the majority of Muslim scholars. 345 It is also the opinion of Ibraaheem an-Nakh'ee346 , Al-Hasan al-Basree347 , Taawoos348 and a number of scholars from amongst the early generations of Muslims. The author of 'Uyoon al-Masaa'il writes, "[A question:] A man handed a garment over to another man and told him, 'Sell it for ten [dirhams]; and if you get more, the profit will be divided between us.' The [broker] sold it for twelve dirhams. Abu Yoosuf said regarding this question, 'The broker should get the wages prevalent in the market for his service (ujrat al-mithl), and I would not give him one extra dirham; and if he sold it for ten dirhams, I would not even give him ujrat al-mithl.' Muhammad also said, 'He should receive the wages prevalent in the market for his service in both cases. Even if he does not sell [the garment], he should receive his wages if he demands them in return for the work he has done.'" 349 The author of Al-Mudawwanah also writes, "If a man hands over a riding animal to another man (i.e. the broker) and tells him, 'Sell it for 100 dinars; and if you get more, the profit will be divided between us', or 'Sell it, and whatever price you get will be divided between us', the broker, according to [Imaam] Maalik, should receive the wages prevalent in the market for his service (ujrat al-mithl), and the whole price should go to the riding animal's owner." 350 Second Opinion Some other scholars argue that this form of transaction is certainly valid. This is the view of ['Abdullaah] ibn 'Abbaas351 (may Allah be

See Al-Fataawaa al-Hindiyyah, 4/451; Al-Fataawaa al-Khaaniyah Bi Haamish al-Hindiyyah, 2/326; and Uyoon al-Masaa'il, 2/241. 343 See Al-Mudawwanah, 3/241; and Haashiyat az-Zarqaanee 'alaa Mukhtasar Khaleel, 7/9. 344 See Al-Mughnee, 8/71. 345 Fath al-Baaree, 4/569. 346 See 'Abdur-Razzaaq, Al-Musannaf, 8/235. 347 See Ibn Abee Shaybah, Al-Musannaf, 10/582. 348 Ibn Abee Shaybah, Al-Musannaf, 10/582. 349 See Abul-Layth as-Samarqandee, 'Uyoon al-Masaa'il, 2/241. 350 See Al-Mudawwanah, 3/421. 351 See Ibn Abee Shaybah, Al-Musannaf, 10/582; and Al-Mughnee, 8/71. 342

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pleased with him), Ibn Seereen, 'Ataa', Shurayh and Ash-Sha'bee352 . It is also the opinion of the Hanbalites353 and that of Ishaaq ibn Raahawayh.354 Ibn Seereen said, "If [the owner] says [to the broker], 'Sell it for suchand-such a price; and if you get more, the profit will be for you or divided between us', there is no objection to such [a transaction]." 355 Ibn Qudaamah also writes, "If a man hands a piece of cloth to another man (i.e. the broker) and tells him, 'Sell it for such-and-such a price; and if you get more, the profit will be divided between us', the sale contract is absolutely valid. [Imaam] Ahmad also expressed this opinion." 356 Evidence Furnished by Proponents of both Opinions 1. Evidence furnished by Proponents of the First Opinion Those who hold the first opinion argue that the price is unspecified as it may or may not exist; furthermore, if the broker sells [the garment] for more than the fixed price, he will receive remuneration while he does not know how much it is going to be; and if he sells it at the fixed price, he will receive no remuneration. 357 In fact, one of the conditions of the hire contract is knowledge of the price in terms of (1) quantity or type, (2) quality and (3) the term of delivery. 358 2. Evidence Furnished by Proponents of the Second Opinion 1. 'Ataa' narrated from ['Abdullah] ibn 'Abbaas (may Allah be pleased with him) who said, "There is no harm if one says [to a broker],

For the statements of these jurists, see Ibn Abee Shaybah, Al-Musannaf, 10/582; and Al-Mughnee, 8/71. 353 See Al-Mughnee, 8/71; Mataalib Ulee an-Nuhaa, 3/488; and Sharh Muntahaa alIraadaat¸2/204. 354 See Al-Mughnee, 8/71. 355 Reported by Al-Bukhaaree, Book of Sale; and Fath al-Baaree, 4/568. 356 See Al-Mughnee, 8/71. 357 See Al-Mughnee¸8/71; and Fath al-Baaree, 4/569. 358 Ibn Qudaamah (may Allah have mercy on him) stated that Muslim scholars are unanimously agreed on this. See Al-Mughnee, 8/14' Badaa'i' as-Sanaa'I', 4/193; Al-Bahr ar-Raa'iq, 7/297; Al-Kharshee, Sharh Mukhtasar Khaleel, 7/3; Ash-Sharwaanee's annotations on Tuhfat al-Muhtaaj Fee Sharh al-Minhaaj, 6/121; and Mataalib Ulee anNuhaa, 3/587. 352

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'Sell this garment for such-and-such a price, and whatever more you get is for you.'" 359 They argue that this statement was made by of one of the Prophet's companions, and no one in his time opposed his opinion. 360 2. The value of the price increases through sale, in which case the transaction is similar to mudhaarabah 361 ; for if the mudhaarib (entrepreneur) receives any profit after his service he becomes entitled to it depending on what he and the investor have stipulated, and if he does not receive any profit whatsoever, he does not get anything. This is similar to the case under study. 362 In my estimation (but Allah knows best), it is the categorisation of this form of transaction that is behind the disagreement among jurists. Those who consider it a hire contract (ijaarah) do not regard it valid because one of the conditions of the hire contract is knowledge of the price. Those who do not deem it a form of ju'aalah 363 or wakaalah 364 are also not agreed due to their differences as to the validity of ju'aalah given the lack of knowledge of the price for performing a service (ju'l).365 I believe (but Allah knows best) that the form of transaction under study is more similar to ju'aalah and wakaalah than to ijaarah (lease/hire) Reported by Al-Bukhaaree, Book of Sale; and Fath al-Baaree, 4/568. See Al-Mughnee, 8/71. 361 A mudhaarabah is an investment partnership, whereby the investor (rabb-ul-maal) provides capital to another party/entrepreneur (mudhaarib) in order to undertake a business/investment activity. While profits are shared on a pre-agreed ratio, loss of investment is born by the investor only. The mudhaarib loses its share of the expected income. (Translator's Note) 362 See Al-Mughnee, 8/71; and Fath al-Baaree, 4/569. 363 Ju'aalah (also called ji'aalah: contract of reward) constitutes wages, pay, stipend or reward. Legally, it is a contract for performing a given task against a prescribed fee in a given period. A similar contract is 'ujrah' in which any work is done against stipulated wage or fee. (Translator's Note) 364Wakaalah (agency) is a standard Islamic practice wherein X (the wakeel) acts as the agent of Y. In this capacity X may execute the affairs of Y. Wakaalah is a widely applicable phenomena in Islamic practice which is often used in financial transactions: whenever a party cannot personally supervise a given affair, it deputizes another party to execute it on its behalf. (Translator's Note) 365 See Al-Kharshee, Mukhtasar Khaleel, 7/76; Asnaa al-Mataalib, 2/441; and Al-Insaaf, 6/390. 359 360

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contracts because it is a form of brokerage that is estimated based on the work done. In fact, in ju'aalah transactions, it is not a condition for the service for which a price for performing it to be known, as it may be both known and unknown. 366 The reason why it is similar to wakaalah is because the commodity owner deputises store owners to execute their affairs on his behalf. However, according to some scholars, if wakaalah is practised in return for an equivalent counter-value or recompense ('iwadh), it may not be termed as such, because the 'iwadh may be in the form of a stipulated wage or fee (ujrah) or reward of labour (ju'l). In this case, if it is a stipulated wage or fee (ujrah), then it is an ijaarah (hire) contract; and if it reward of labour (ju'l), it is ju'aalah.367 It is also a form of ju'aalah given the lack of knowledge of the recompense ('iwadh) if this does not prevent the handing over of the commodity, and this is one of the views adopted by the Hanbalite jurists368 . Perhaps the statement of 'Abdullaah ibn 'Abbaas (may Allah be pleased with him) lends ample support to this view. The preponderant view regarding this issue is that it is valid and permissible for the following reasons: 1. People need this type of transactions in order to promote the commodity owners' products owners. In addition, lack of knowledge and the element of uncertainty in any business or a contract about the subject of contract or its price (gharar) are forgivable, given that the service rendered in the ju'aalah contract is also unknown [and thus forgivable], even though lack of knowledge as to the service rendered may far exceed the lack of knowledge of the 'iwadh (recompense) if this does not prevent the handing over of the commodity. In fact, this form of transaction was practised even during the time of the Prophet's companions, hence its permissibility. 2. Slight forms of risk-taking and uncertainty are forgivable in a number of contracts, such as the watering and agriculture contracts. The dispute feared to arise as a result of the seller's increasing the price many See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/484; At-Taaj Wal-Ikleel, 7/595; Asnaa al-Mataalib, 2/440; and Al-Insaaf, 6/390. 367 See Al-Wasaatah at-Tijaariyah Fee al-Mu'aamalaat al-Maaliyah, p. 120. 368 See Al-Insaaf, 6/391. 366

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times over is a clear indication of his greed and selfishness, but there is no harm in concluding such contracts as long as both contracting parties have agreed to this, and Muslims must abide by their conditions. Furthermore, not every thing that is feared might lead to disputes should be prevented, for the outbreak of such disputes may be due to lack of religious awareness and failure to honour agreements. indeed, the harm that results by considering such transactions impermissible is actually more serious and greater than the mutual hatred and the unlawful acquisition of wealth that is feared to arise, for the element of uncertainty and risk-taking (gharar) in such transactions are slight [and thus forgivable]. 369 If the commodity owner says [to the broker], "Sell this [item] for, say, 100 [dirhams] and take ten [dirhams]' —in which case remuneration in terms of quality and quality is known — then such a transaction is permissible, according to all Muslim jurists370 , except for the Hanafite jurists who contend that [the broker] is not entitled to the specified remuneration but rather to the wages prevalent in the market for his service (ujrat al-mithl)371 . The reason for this, according to them, is that it is not permissible to hire a broker to carry out the task 372 , and in case a broker is hired the contract becomes null and void, based on their belief that the ju'aalah contract should not be concluded.

Conclusions In conclusion, I would like to highlight the most important points I have discussed in the present paper, as follows: 1. The tasreef contract has four forms, namely: a. Sale with a restrictive condition included in the contract . By 'restrictive condition/s' is meant the condition/s stipulated by the contracting parties in their contracts which require extra obligations on their behalf. See Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 155. See Al-Mudawwanah, 3/466; Al-Baajee, Al-Muntaqaa, 5/111; Kash-shaaf al-Qinaa', 4/11, Mataalib Ulee an-Nuhaa, 3/612 ff. 371 See Al-Fataawaa al-Hidiyyah, 4/450. 372 See Al-Mabsoot, 15/115; and Al-Fataawaa al-Hidiyyah, 4/441. 369 370

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b. Sale Contract made Contingent on a Future Event. Regarding this form of transaction, Muslim jurists use the expression "ta'leeq al-bay' 'alaa shart'373 (making sale contingent on a future event). In fact, it is one of the forms of acceptance in the sale contract and is the opposite of the so -called 'aqd munjaz374 (completed contract). Making sale transactions contingent on future events in the tasreef contract takes place in the following two ways:  By using one of the conditional particles 375 . An example of this is when the buyer says to the seller, "If I manage to merchandise the commodity and sell it, that is fine; otherwise, the sale contract we have concluded will not be binding." He may also say, "I will buy the commodity if I manage to merchandise it and sell it; otherwise, thee sale contract will be null and void." In these statements, the buyer makes the first sale transaction between him and the seller contingent on the merchandising and selling of goods by using a conditional particle, which is 'if' in this instance.  The general meaning in the linguistic context of the statement. To illustrate, the seller may tell the buyer, "The goods which you do not merchandise and sell to others will be mine." The main differences between the sale contract which includes the restrictive condition and the sale contract made contingent upon an event in the future stem from the differences between shart (condition) and ta'leeq (making something conditional upon something else). Following are the principal differences between these two forms: See Az-Zayla'ee, Tabyeen al-Haqaa'iq, 4/131; Al-Qaraafee, Al-Furooq, 1/229; Jawaahir alIkleel, 1/248; Az-Zarkashee, Al-Manthoor fee al-Qawaa'id, 1/373; and Ibn Qaasim, Haashiyat ar-Rawdh al-Murbi', 4/405. 374 In this type of contract, the form of acceptance is free from any conditions of restrictions and become binding as soon as it is concluded. In fact, such a contract incorporates the original form found in all contract. The offer in such a contract will be something like "I'll sell you my house for such-and-such an amount." See 'Alee alKhafeef, Al-Mu'aamalaat ash-Shar'iyyah, pp. 220-221; and Muhammad abu Zahrah, AlMilkiyyah Wa nadhariyat al-'Aqd, p. 256. 375 The Arabic conditional particles include, among other things, in, idhaa and lau which are all equivalent to the English 'if'; kullamaa and mataa maa, which both mean 'whenever; and mahmaa, which is equivalent to 'whenever' and 'whatever'. See Rawdhat at-Taalibeen, 8/128; Al-Mughnee, 10/443; Fawaatih ar-Rahamoot, 1/248; Tayseer at-tahreer, 2/120; and At-Talweeh 'Alaa at-Tawdheeh, 1/120. 373

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 Unlike the stipulation of a condition in the sale contract which requires the use of such phrases as ''alaa an' or 'bisharti an', which both mean 'on condition that', making a sale transaction contingent upon a certain condition requires the use of a conditional particle, such as in (if) and any of the other conditional particles.  The sale that is made contingent upon a certain condition does not become effective prior to the fulfilment of the condition upon which it depends. When the buyer says to the seller, "If I manage to merchandise the commodity and sell it, that is fine; otherwise, the sale contract we have concluded will not be binding," he actually makes the sale contract with the seller contingent upon the fulfilment of the future condition, namely the merchandising and selling of goods. On the contrary, the condition stipulated in the sale contract is there and its rulings and obligations under the contract become binding as soon as the mode of expression in the contract is issued. 376  The act of making the sale contract contingent upon a future condition becomes rather inconsequential regarding the contract and its future rulings. To put it bluntly, as soon as the condition upon which the contract becomes contingent is met, the contract will be regarded as though there has never been a condition binding it, and all its rulings and obligations under the contract will become effective. As for the condition stipulated in the contract, it actually affects the rulings and obligations under the contract and will have a twofold function: Either (1) to restrict the rulings and obligations under the contract after the contracting parties have had the freedom to dispose of the tangible asset of the transaction (mabee'), such as the seller's stipulation that he would live in the house he has sold for a month or to ride the riding animal he has sold to a certain place; or (2) to confirm the requirements of the contract, such as meeting the requirements of the object of the contract; an example of which is when the seller stipulates, in the case of deferred payment, the existence of a certain pledge or collateral (rahn)377 or guarantor (kafeel)378 or the

See Az-Zarkashee, Al-Manthoor Fee al-Qawaa'id, 1/270; Ash-Shaadhlee, Nadhariyat ashShart, pp. 55-56; and Ash-Shart al-Jazaa'ee Wa Atharuhu fee Al-'Uqood al-Mu'aasirah, p. 82. 377This means to pledge or lodge a real or corporeal property of material value, in accordance with the law, as security, for a debt or pecuniary obligation so as to make it 376

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addition of certain matters which are not required by the contract, such as buying firewood on condition of having it broken. 379 c. Concluding a sale contract with the option of stipulation 380 . As an example of this form of transactions, the contracting parties conclude a sale contract on condition that the buyer has the option to execute it or cancel it. Some sellers fix a specific period of time for this option, such as one or more weeks, to merchandise and sell the goods; otherwise, he will have to return them to the seller. Some buyers fix an unknown period of time by saying, for instance, "I have purchased the goods and I have the option to return the tangible asset of the transaction (mabee') or part of it until the end of the season." Some others do not specify any period of time whatsoever by saying, for example, "I have bought the goods on condition that I have the option to return the tangible asset of the transaction or part of it." d. Delegating others to sell something for a known price and giving the broker the amount exceeding the fixed price: An example of this is the common practice of requesting store owners to sell a certain commodity for, say, SR 100 and to take any money exceeding this amount. 381 In fact, this from of transaction is next only to the first form in terms of practice, and it is practised even more by the authorized trademark agents in a certain part of the world (such as the authorized trademark agents of certain rug stores) in that the trademark owners desire to market their products and thus request some store owners to sell their products in this manner. 2. The preponderant view (Allah knows best) regarding the ruling on the sale contract which is based on the condition that makes the transaction possible for the creditor to recover the debt or some portion o f the goods or property. (Translator's Note) 378The word Kafeel is derived from kafaalah which literally means responsibility or amenability. Legally in kafaalah a third party becomes surety for the payment of a debt. It is a pledge given to a creditor that the debtor will pay the debt, fine etc. Kafaalah in Islamic law is the creation of an additional liability with regard to the claim, not to the debt or assumption only of the liability and not of the debt. (Translator's Note) 379See Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 55-56. 380 The option of stipulation is termed in Arabic khiyyar ma'ash-shart and refers to the condition stipulated by one or both of the parties to a contract to execute or cancel the contract for any reason for a fixed period of time. See Radd al-Muhtaar, 4/565; Minah alJaleel Sharh Mukhtasar Khaleel, 5/111-112; Kash-shaaf al-Qinaa', 3/202; and Nayl alMa'aarib Fee Tahdheeb Sharh 'Umdat at-Taalib, 3/56. 381 See Al-Ghurar al-Bahiyyah Fee Sharh al-Bahjah al-Wardiyyah, 3/311.

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of sale contingent on a future event is the one whose proponents maintain that both the contract and the condition are valid. I deem it necessary, though, that such a condition is to be confined to a specific period of time. 3. The preponderant view (Allah knows best) regarding the ruling on the sale contract which is based on the condition that makes the transaction of sale contingent on a future event is the one whose proponents contend that the contract is valid if this is bound to realise people's benefits and does not include anything that contravenes the commands of Allah or His Messenger. 4. Muslim jurists have expressed different opinions as to the stipulation of the optional condition without fixing a specific period of time, such as by saying, 'whenever we want', whenever the buyer wants', 'I have the conditional optional' without fixing a specific period of time, and simply stipulating a period of time whose occurrence is not known, such as 'when Ahmad comes', 'when the season is over'. Will the contract in this case be valid or not? 5. The view which has more in its favour (Allah knows best) is the one whose proponents argue that the contract is valid while the optional condition stipulated is void and that the party whose benefit is not realised as a result of dropping the condition can redress this by rescinding the contract. Therefore, I believe (Allah knows best) that this restrictive condition should not be absolute. Rather, we should see if the period of time is not very long by the standards of the prevailing customs in society ( 'urf) in which case the commodity will not undergo any change and the buyer will not be subject to any harm which is not legally admissible, then we can apply this restrictive condition; otherwise, the contract will still be valid but the condition should be dropped. The rationale for such a procedure is that the buyer's excuse to drop the condition due to the harm top which he may be subject is not more appropriate and more deserving of the seller's excuse to rescind the contract owing to the harm to which he may be subject. As the juristic principles go, "Adh-dhararu laa yazoolu bi mithlihi" (One wrong must not be removed by another wrong) 382 and "Al-kharaaju bidhdhamaan383 "384 See Ibn As-Subkee, Al-Ashbaah Wan-Nadhaa'ir, 1/41; Ahmad az-Zarqaa, Sharh alQawaa'id al-Fiqhiyyah, p. 195 and Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/189. 383 This means whoever is responsible for damage or loss of an asset, deserves to receive any earning, generated by that asset. Therefore, if a person buys a house and rents it, 382

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6. Muslim jurists have expressed three different opinions regarding the period of the optional condition, and the view which has more in its favour is the one whose proponents contend that it is allowable to stipulate an optional condition to rescind the sale contract within a specific period of time to be agreed upon by the contracting parties, whether such a period is long or short. 7. Muslim jurists have expressed three different opinions about the ruling as to the stipulation of an optional condition regarding a specific article of sale. Can the buyer possibly stipulate an optional condition regarding specific items, or does the optional condition apply to the whole commodity? Also, what will the case be whether or not he makes a stipulation to this effect? The preponderant view is the one whose proponents argue that it is permissible to stipulate an optional condition regarding one of the two items of which the asset consists if the seller clearly states the price of each item of the asset. 8. The preponderant view regarding the delegation of a broker to sell a certain item for a specific price and to keep whatever more money he gets is that it is absolutely valid. In fact, this is the view of 'Abdullah ibn 'Abbaas (may Allah be pleased with him) whose opinion none of the Prophet's companions opposed. 9. If the commodity owner says to the broker, "Sell this item for, say, 100 [dirhams] and take ten [dirhams]' — in which the case remuneration in terms of quality and quality is known — then such a transaction is permissible, according to all Muslim jurists.

then had to return it back because of a defect in the house, that person is the rightful owner of the rent paid to him during that period. This is because if anything goes wrong with the house during that period it would be his responsibility. (Translator's Note) 384 See Imaam Mansoor as-Sam'aanee, Qawaati' al-Adillah Fee al-Usool, 1/194; and 'AbdurRaheem al-Asnawee, At-Tamheed, 1/410.

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