Kitab Al-Buyu' (Book of Sales)

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‫الكتاب البيع‬ Kitab al-Buyu’ BOOK OF SALES From the book Al-Bidayat al-Mujtahid wa Nihayat al-Muqtasid The Distinguished Jurists Primer, Vol 2 by Ibn Rushd

Explained by Dr. Ibrahim Dremali

TABLE OF CONTENTS Part 1: Definition of the Kinds of Absolute Sales ............................................2 The Types of Sales .................................................................................2 The Kinds of Sales ..................................................................................2 Part 2: Definition of the General Causes of the Vitiation in Absolute Sales .........3 Chapter 1: Corporeal Property Prohibited for Sale .......................................3 Chapter 2: Usurious Sales (Riba) ..............................................................3 Two types of Riba ................................................................................3 Four sections of Riba ............................................................................4 Sub-Chapter: Sales through Usurious Means ..............................................5 Iqala: Negotiated recession of a contract ................................................5 Buyu‟ al-Ajal: Deferred Sales ................................................................5 Proposition: Sale of food before Possession .............................................5 Chapter 3: Sales Prescribed on Account of Misappropriation the Cause of Which is Gharar...............................................................................................6 Gharar from the aspect of Jahl ..............................................................6 Prohibited sales prescribed by the Prophet ..............................................6

‫ المنطوق بال‬Al mantuq billa: .......................................................................6 Issues not Expressly Covered ................................................................7 Chapter 4: Sales with Conditions and Provisions .........................................8 Chapter 5: Sales Prescribed because of Harm or Fraud .............................. 11 Individual Sale Countering the Sale of Your Brother ................................ 11 Section 1: Going Out to Meet/Trade Caravans (Outside the city Limits) ..... 11 Section 2: Sale by a Settler in behalf of the Inhabitant of the Desert ........ 12 Section 3: Prohibition of Raising Bids.................................................... 13 Chapter 6: Prescription of Sale because of the Time of Prayer ..................... 13 Part 3: Reasons and Conditions Validating Sales .......................................... 14 Chapter 1: The Contract („Aqd) .............................................................. 14 Element 1: The Form of the Contract („Aqd) .......................................... 14 Element 2: The Subject Matter of the Contract (Ma‟qud „alayh) ................ 15 Element 3: Parties to the Contract ....................................................... 15

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PART 1 DEFINITION OF THE KINDS OF ABSOLUTE SALES ‫ بيوع‬Buyu’: a sale, an exchange, a transaction between two individuals

The Types of Sales 1) ‫ عيي ببلعيي‬Corporeal property for corporeal property, something determined and present 2) ‫ عيي ببلزهت‬Corporeal property for a corresponding liability 3) ‫ رهت ببلزهت‬Liability for another liability Each of these three types of sales are either delayed (nasee‟a) or immediate (naajiz)  

‫ بيىع الٌسيئت‬Buyu‟ an-Nasee‟a: Delayed Sale ‫ بيع الٌبجز‬Buyu‟ an-Naajiz: Immediate Sale

The Kinds of Sales 1) ‫ صشف‬Sarf: currency is exchanged for a currency 2) ‫ بيع‬Bay‟: currency is exchanged for a priced commodity 3) ‫ سلن‬Salam: corporeal property is exchanged for a liability 4) ‫ بيع الخيبس‬Bay‟ al-Khiyar: sale with an option 5) ‫ الوشابحت‬Murabaha: sale made with a stated profit 6) ‫ هزايذة‬Muzayada: when bids are called, an auction

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PART 2 DEFINITION OF THE GENERAL CAUSES OF THE VITIATION IN ABSOLUTE SALES When the cause of defect is related to the sale itself, it is due to: 1) Prohibition of the commodity itself 2) ‫ سبب‬Riba: usury 3) ‫ غشس‬Gharar: hazard, uncertainty, deception 4) Stipulated conditions that lead to one of the last two or both simultaneously The cause of defect may be linked to an external factor, which include: 1) ‫ غش‬Ghish or ghash: misrepresentation 2) ‫ ضشس‬Darar: injury

Chapter 1: Corporeal Property Prohibited for Sale These are two kinds: 1) Najasa (filth) a. Khamr (wine) b. Mayta (carrion) c. Khinzir (pork) d. Asnam (idols) 2) Other than filth: such as dogs

Chapter 2: Usurious Sales (Riba) Two types of Riba 1) ‫ سبب الٌسيئت‬Riba Nasee‟a (delayed) 2) ‫ سبب التفبضل‬Riba Tafadul (stipulated excess). The word fadl, ziyada means extra or more. Al-Fadl is when people are dealing with two similar things. The majority of scholars are of the opinion that ALL types of Riba are prohibited. 

Hadeeth Ibn Abbas: The Prophet ‫ صلى هللا عليه و سلم‬said, “There is no riba except in delay (nasee‟a)”. There is another hadeeth which abrogates this hadeeth.

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Four sections of Riba 1) Things which neither excess nor delay is allowed, along with their corresponding underlying cause (illa) 2) Things in which excess is allowed, but delay is not. 3) Those in which both are allowed 4) Things that are considered as one category and those that are not Section 1: Identification of things which neither excess nor delay is allowed, along with their corresponding underlying cause (illa) Prohibition of excess (in exchange of the same category) 

Hadeeth Ubada ibn al-Samit, “I heard the Messenger of Allah ‫صلى‬

‫ هللا عليه و سلم‬prohibiting the sale of gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, except through equal measure and immediate exchange”. Prohibition of nasee‟a (delay) 

Hadeeth Omar bin al-Khattab, “The Messenger of Allah ‫صلى هللا عليه و‬ ‫ سلم‬said, „Gold for gold is riba except from hand to hand, dates for dates is riba except from hand to hand, barley for barley is riba except from hand to hand‟”.

Prohibition of delay in the exchange of two categories with the permission of excess in them 

“Sell gold for silver as you like, but from hand to hand and sell wheat for barley as you like but from hand to hand”.

Section 2: Identification of things in which excess is allowed, but delay is not   

This is the opinion of the author, but we have established that both types are haram according to the hadeeth of Bilal. According to the majority of the scholars, two similar things are not allowed Abu Hanifa also spoke about the measurement which is haram as well (in addition to quality and quantity). The solution is to sell what you have then exchange what you want.

Section 3: Identification of property in which both (excess and delay) are permitted simultaneously 

Majority of scholars say this is standard of living (barley, wheat, etc).

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Section 4: Identification of property considered as single species and that which is not

Sub-Chapter: Sales through Usurious Means What leads you to Riba are two things: ‫ إقالل‬Iqala and ‫ بيوع االجال‬Buyu‟ al-Ajaal

Iqala: Negotiated recession of a contract    

Initial contract is rescinded for a new contract or conditions One of the parties may regret the initial conditions Once the person leaves the room the deal is done and it cannot be rescinded Recession of a contract can only be done with both in agreement

Buyu’ al-Ajal: Deferred Sales  



Purchasing an item being sold with excess or loss A person is selling something for 10 dollars, and then purchases the same goods from him for 20 dollars on credit. Example: I will sell you this donkey for 20 dollars on credit for one month, then I will buy it back from you for ten dollars cash 2 out of 9 cases are disputed due to insinuated underlying intention of riba

Questions and suggested research topics: Are these valid?    

Credit card contracts with conditions of interest Mulamasa: touching and buying is it allowed? Buying food, and paying for it before you get the food Internet buying

Proposition: Sale of food before Possession Majority of scholars say it is haram 

Narration of Malik from Nafi‟ from Abdullah ibn Omar, that the Messenger of Allah ‫ صلى هللا عليه و سلم‬said, “He who purchases food must not sell it till he takes possession of it”. Authentic hadeeth reported by 6 books except Tirmidhi

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Chapter 3: Sales Prescribed on Account of Misappropriation the Cause of Which is Gharar ‫ غرر‬Gharar: uncertainty. The seller knows the problem, or can be from the aspect of Jahl ‫ غبن‬Ghubn: to do wrong, cheat or misrepresent facts

Gharar from the aspect of Jahl ‫ جهل و جهبلت‬Jahl or Jahala: lack of knowledge 1. Failure to identify the subject matter of the contract, or failure to determine the contract (Ta3een al Aqd) 2. Failure to identify the attributes of the price, quantity, or the deferred period (delivery) 3. Failure to identify its existence, or impossibility of its acquisitions (the obstacles of delivery), like knowing it will not arrive until a certain time, etc. 4. From the aspect of its sound existence (its continued existence) Gharar can be found in sales that are expressly prohibited in the shar‟ and those which there is silence. Expressly prohibited sales (with gharar) are mostly are agreed upon, (only the meaning of names are disputed).

Prohibited sales prescribed by the Prophet ‫ المنطوق بال‬Al mantuq billa: 1. ‫ حبل الحبلت‬Habl al-Habla: Sale of fetus in the stomach of conceiving animal. Sale of something before creation. 2. Sale of fruits before they are ripe. Sale of fruit can occur before or after it sprouts. Once it comes into existence, the sale can take place before it is picked or after. a. Sale before picking (1) before it ripens (all scholars agree it is prohibited) (2) after it ripens (all scholars say this is permissible) b. After it is picked (no dispute about permissibility) c. Sale after its creation (1) majority of scholars say it is permissible (2) Other scholars say we need more details 3. ‫ هالهست و هٌببزة‬Sale of mulamasa (touching the merchandise without knowing the full description) and munabadha (i.e. seller wearing the merchandise and you have to buy it ) a. Mulamasa: touching without knowing, or buying in night time, all schools of thought agree it is prohibited due to lack of description.

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4. ‫ الحصبة‬Bay‟ al-hasat: Sale by throwing stones, which is considered gambling. 5. Mu‟awama: Yearly sales. This belongs to category of sale before creation 6. ‫ بيعتيي في بيعت‬Two sales in one transaction a. Exchange of two priced commodities for two prices b. Exchange of a priced commodity for two prices c. Exchange of two priced commodities for one price 7. Conditional sale: Sale linked to a loan 8. Sale of grain ears before they whiten 9. Sale of grapes before they blacken (i.e. unknown fruits, vegetables, etc.) 10. ‫ هضبهيي و هالليح‬Madamin and Malaqih: Sale of fetuses and sperm of animals Permitting sale of fruits generally before ripening: Kufiyeen (scholars of Kufah) use the following hadeeth as proof: 



Hadeeth of Ibn Omar that the Prophet ‫ صلى هللا عليه و سلم‬said “He who sells date-palms that have fertilized the fruit is for the seller, unless the buyer has stipulated a condition to include the fruit”. They said since it is permitted to the buyer to stipulate this condition, it is likewise permitted to sell the fruit separately.

Issues not Expressly Covered Issue 1: The subject-matter of sales if of two kinds The things sold are of two kinds: 1. Things present and visible (no dispute about the validity of these sales) 2. Things absent or impossible to see or examine (disagreement among the fuqaha, due to the lack of knowledge of description) a. Malik: it’s permissible to sell an absent commodity (mabi’) by description as long as the description does not change b. Abu Hanifa: it’s permissible to an absent commodity without description, but the buyer has an option when he sees it to maintain the contract or not c. Malik: sale of an absent commodity without description is valid on the condition of option of examination (khiyar al-ru‟yu) d. Shafi’ee: sale is not permitted in both cases Issue 2: Agreement that it is not permitted to sell things with a delayed period Issue 3: Crops growing in a single phase and those growing more than once

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Chapter 4: Sales with Conditions and Provisions The irregularity found in these sales is from the aspect of gharar. Due to the defective nature of these sales they are considered a separate category of sales. There is disagreement with the scholars in this issue due to the following ahadeeth: 1. Jabir said: “The Messenger ‫ صلى هللا عليه و سلم‬of Allah bought a shecamel from me and stipulated, as a condition, riding it to Madina”. (Bukhari and Muslim) a. This is only part of the hadeeth, the whole hadeeth was not taken

into account. The context of the whole hadeeth must be understood.

b. This hadeeth occurred during the Hajj season, and when the

Prophet ‫ صلى هللا عليه و سلن‬performed Hajj which was 9 AH (end of the life of the Prophet ‫صلى هللا عليه و سلن‬, one year before he passed away) c. Jabir ibn Abdullah al-Ansari was riding a camel in Arafat when he

saw the Prophet ‫صلى هللا عليه و سلن‬. The Prophet ‫صلى هللا عليه و سلن‬ understood the people and the animals. The camel was very sick and tired. He made duaa for Jabir, hit the camel nicely and the camel started to run as if it were never sick. Jabir said the camel never ran like that before. The Prophet ‫ صلى هللا عليه و سلن‬asked Jabir to sell the camel to him, but Jabir was initially reluctant. He then agreed, but requested to go to Madina first in order to carry the goods he was carrying, then would give the camel to the Prophet ‫ صلى هللا عليه و سلن‬in Madina. d. He made a sale with an exception

‫ استثٌبء‬istithna, and it was

understood and known from the beginning. 2. Barira that the Messenger of Allah ‫ صلى هللا عليه و سلم‬said: “Any condition that is not in accordance with the Book of Allah is void, through it be a hundred conditions”. (Reported by the group)

3. Jabir said “The Messenger of Allah ‫ صلى هللا عليه و سلم‬forbade muhaqala, muzabana, mukhabara, mu‟awama and thaniyya (provisions) and exempted the „uraya”. (Muslim) a.

‫ ًهى‬Naha: forbade. The Prophet ‫ صلى هللا عليه و سلن‬has the authority to forbid things; he does not speak out of his own desire but through revelation. There are many rules in this hadeeth.

b.

‫ هحبلمت‬Muhaqala: crops in the field (standing crops) are bought for grains according to a customary measure (i.e. to sell wheat in the ear, not as a seed, for grains). Muhaqala is from the word haqal (farm) and ‫ مزرعه‬Muzra‟a is the same as haqal. To sell a farm for

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another food. Another definition of muhaqala is renting of land (without knowing the measure of crops in it). c.

‫ هزابٌت‬Muzabana: the selling of ripe dates for dates still on the trees. Or, you buy a farm without knowing the measure of crops in it.

d.

‫ هخببشة‬Mukhabara: a share or percentage of produce is given to a person. A farm is given to a person, and he makes an investment in it and then gets a share in the (unknown) produce.

e.

‫ عبم‬or ‫ سٌت‬Mu‟awama: selling ahead for years. Can only buy this year, not years ahead.

f.

‫ ثٌُيب‬Thuniyya: exceptions, selling with unknown exceptions. (i.e. I have land with palm tree, and sell this land to you except for one palm tree, without stating which one).

g.

‫ عشيب‬or ‫ عشيت‬Uraya: buying of date-palm until its fruit is ripened (ripening means that its color becomes red or yellow, or if the fruit is fit for being eaten). It is okay to clean up the palm tree so the people can look at it.

Ibn Shubruma (not Ibn Abi Shubruma, his real name is Abdullah ibn Shubruma), was a Tab‟i from Kufa, and a judge, and has his own school of thought. His opinion is that the sale is good, based on the first hadeeth. The sale is halal and the condition is halal. Hadeeth Amr ibn al-„As, recorded by Abu Dawood who said, “The Messenger of Allah ‫ صلى هللا عليه و سلم‬said, „Loan with a sale is not permitted, nor are two conditions with a sale and there is no entitlement to profit without a corresponding liability for loss, nor should there be a sale in what you do not have‟”. Malik‟s view, the conditions are divided into three kinds: 1. Conditions that are nullified along with the sale 2. Conditions that are permitted along with the sale 3. Conditions that are nullified, but the sale is valid 4. If insisted by the stipulator nullifies the sale, but when it is given up by him the sale is valid Malik also held the opinion that:   

If the degree of implied gharar or riba is excessive: the sale is nullified and the conditions are nullified If the degree is midway, the conditions are nullified but the sale is permitted If the degree is insignificant, the sale is permitted and the conditions are valid. (However if we do not accept this it is Zahd)

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Permissibility of selling with determined exemptions Example: A person sells the fruit of his palm grove, except from certain determined date palms   

All scholars in agreement this is permissible, as long as the exemptions are specified All scholars agree that it is not permitted to exempt an unspecified number of date palms to be determined by the buyer after the sale (this is selling something unknown by the parties) Scholars disagreed about the man who sells a palm-grove and exempts from it a number of date-palms after the sale. o Majority do not allow this because the quality varies o Malik permits it o Ibn al-Qasim does not allow for date-palms but allows for sheep

Sale and hire in the same contract / Rent to buy in the same contract There is disagreement with the scholars regarding this  

Malik and his students permit it o If the rent or wage is specified it would not be unknown The Kufiyeen and Shafi‟ee do not permit it, because the price would be unknown

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Chapter 5: Sales Prescribed because of Harm or Fraud The Prophet ‫ صلى هللا عليه و سلن‬prohibited:  An individual sale countering the sale of his brother, that he make an offer countering the offer of his brother.  That trade caravans be received outside the city limits  That a settler sell on behalf of an inhabitant of the desert  Bids are raised (najsh)

Individual Sale Countering the Sale of Your Brother Buyer or seller should not be harmed in any way, even if offering a better item to the buyer. The opinion of the scholars, regarding the meaning of the Prophet‟s ‫صلى هللا عليه و‬ ‫ سلم‬words, “Do not sell counter to the sale of others”   

Malik and Abu Hanifa: Counter sale to the sale of others and to your brother is considered the same. At-Thawri: a person should not come to the parties to the sale and say „I have good better than these‟ Shafi‟ee: when the oral agreement is complete and they have not parted, a person should not come to present the buyer with better goods. This is based on this view that sales become binding upon parting.

Regarding countering the sale of a Dhimmi  

Majority said there is no difference between a dhimmi and another person Al-Awza‟i: there is no harm in this

We should not cheat or harm anyone, or reciprocate any cheat or harm, because it would make us equal to them

Section 1: Going Out to Meet/Trade Caravans (Outside the city Limits) This is aimed at the people of the market (shopkeepers). They should not benefit alone from the inexpensiveness of goods, to the exclusion of other shopkeepers. In some countries, merchandise is brought to the port, and some buyers go to the port to purchase the merchandise before it arrives to the market. It occurs online as well.

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Malik‟s opinion   

It is not permitted to buy ‫ سلعت‬merchandise until it reaches the ‫ سىق‬market, or close to it If the travelers are far away in a different city or country then it is permissible If the sale went through it

Shafi‟ee‟s opinion   

Reason for prohibition is to protect the interest of the seller, so the advance buyer does not deceive him with market prices in the city If the sale went through, the seller has the option of rescinding the sale or keeping it. Abu Hanifa shares this opinion as well.

“Do not intercept the goods on the way to the market, if one obtains something from these, at an unjust price and buys it, the seller has an option on reaching the market”. Muslim

‫ هعبهالث‬Transactions ‫شجع‬: When you hold a commodity until there is no more, so that the price increases, and then you sell it. ‫ ًهي‬Prohibition ‫ غبي‬Injustice: We should not cheat the buyer (i.e to buy things in advance then bring it back and sell it for the same price).

Section 2: Sale by a Settler in behalf of the Inhabitant of the Desert The Prophet ‫ صلى هللا عليه و سلم‬prohibited sale by a ‫ حبضش‬city dweller (hadhr) to a ‫ببد‬ desert dweller or villager (baad). This causes harm to the buyer because of the possibility of deception of not knowing the market price, unless it is established. Hadith Jabir who said, “The Prophet ‫ صلى هللا عليه و سلم‬said, „The urbanite is not to sell for the ruralist, leave the people along so that Allah may provide for some of them through others‟”. Muslim and Abu Dawood

‫ شيخبى‬or ‫ هتفك‬Bukhari and Muslim

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Section 3: Prohibition of Raising Bids ‫ ًجش‬Najsh (shaddah on noon): raising bids, when one raises the price of a commodity having no intention to buy it, but to benefit the seller and harm the buyer The Prophet ‫ صلى هللا عليه و سلن‬prohibited Najsh. Disagreement with the scholars if the sale took place  Dhahiri: the sale is prohibited and void  Malik: it is like selling a defective commodity and the buyer has a choice to rescind or keep it  Abu Hanifa, Shafi‟ee and Imam Ahmad: the sale is valid but they are sinners

Chapter 6: Prescription of Sale because of the Time of Prayer When the call is heard for the prayer of the day of congregation, hasten to remembrance of Allah and leave your trading (selling and buying). Surat al-Jumuah (42:9) If the Adhan is called for Jumuah  ‫ إجوبع‬Ijma: All the scholars agreed, that selling and buying are prohibited  If there is no call, we still know the time for Jumuah If the sale occurred  Malik: the transaction becomes dissolved ‫ فسخ‬Faskh: dissolution  Shafi‟ee, Abu Hanifa and another opinion of Malik: transaction is not void o Malik: void only for the ones on whom Jumuah is obligatory

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PART 3 REASONS AND CONDITIONS VALIDATING SALES Chapter 1: The Contract (‘Aqd) Element 1: The Form of the Contract (‘Aqd) Use of words “sale” and “purchase” must be used verbally or in oral agreement, such as “I have sold to you”, “I have bought from you”, “I have sold it to you” Verbal language versus Expressions/Gestures (Expressions vary from place to place, culture to culture)  

Shafi‟ee: sale is concluded both by clearly stated words and an alluding expression Gestures alone are not sufficient

The four Imams agreed that an offer and acceptance for a sale should not be delayed until after they have departed (cannot come back and say I accepted) Dispute regarding the moment the sale becomes binding  

Malik, Abu Hanifa and students, and jurists of Madina: Becomes binding through acceptance even though they have not departed Shafi‟ee, Ahmad, Ishaq, Abu Thawr, Dawood, Ibn Omar: Sale is binding through parting. As long as they have not parted, sale is not binding or concluded. One of them can change their mind if they want

As far as in the same place and same room, they can change their mind (sale not binding) 

 

Tradition of Malik from Nafi‟ from Ibn Omar that the Messenger of Allah ‫ صلى هللا عليه و سلم‬said, “The two parties to the sale, each one of them has an option (khiyar) against his counterpart, as long as they have not parted, except in the sale with an option”. Reported by al-Jama‟ah. In another narration, “Except when one of them says to the other „choose‟” Many sale transactions are based on this hadeeth above

ِ ‫يا أَيُّها الَّ ِذين آمنُوا أَوفُوا بِالْع ُق‬ ‫ود‬ َ َ ُ ْ َ َ O you who believe! Fulfill (your) obligations. Surat al-Maidah (5:1)

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Element 2: The Subject Matter of the Contract (Ma’qud ‘alayh) ‫ هعمىد عليت‬Ma‟qud „alayh, the commodity, or subject of a contract The conditions pertaining to the subject-matter of a contract:  

There must be an absence of gharar (uncertainty) There must be an absence of riba (interest)

Gharar should be removed with respect to:     

Existence Description Quantity Readiness for delivery (both commodity and price) Period of delivery (if it is a credit sale)

Element 3: Parties to the Contract The conditions of the parties to the contract include: 1. They have full ownership or are lawful agents with power of attorney 2. They have reached the age of puberty a. Malik and Shafi‟ee: sale is not valid if the boy has not reached the age of puberty b. Abu Hanifa and Ahmad: it‟s ok as long as he can distinguish right from wrong with permission of guardian 3. Al-Aql (sanity)

If there was a forced sale  

Ahmad, Malik and Shafi‟ee: the sale is not valid Abu Hanifa: the sale is valid if there is a choice afterwards

The validity of selling and buying by a blind man  

Shafi‟ee: said they need assistance Ahmad, Malik and Abu Hanifa: transaction is valid because they are trained

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Effectiveness of Sale by a Fuduli ‫ فضولي‬Fuduli: Unauthorized Agent

 

He does not have any authority or right to sell A written contract would be required

The Messenger of Allah ‫ صلى هللا عليه و سلم‬gave a dinar to Urwa al-Bariqi and said, „Buy for us out of this incoming flock, a goat‟. He said, „I bought two goats with a dinar then sold one of them for a dinar and came back with a goat and your dinar‟. He said, „O Lord, bless him in his lawful transactions‟   

The Prophet ‫ صلى هللا عليه و سلم‬did not order him to purchase the 2nd goat. Ahmad, Malik and Shafi‟ee: this is a hujjah (proof) that this kind of transaction is valid Abu Hanifa: Transactions of this type are not valid

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