‫ﺑﺴﻢ ﷲ اﻟﺮﺣﻤﻦ اﻟﺮﺣﯿﻢ‬

‫ﻧﺤﻤﺪه و ﻧﺼﻠﯽ ﻋﻠﯽ ٰ رﺳﻮﻟہ اﻟﮑﺮﯾﻢ‬

Law of Sale in Islam

[Justice ® Dr. Munir Ahmad Mughal]

Rationale1 behind sale and purchase

Unit of Society is a human being. A

society is the other name of organization
of individuals. Human beings are social
by nature. They are habitual to live
together. In their needs they are
dependent upon one another. The reason
is that wants of human beings are many
and multiple and they cannot
individually fulfil them. Hence under the
Divine wisdom some individual have
been blessed with special capability and

1
The underlying principle, basis, foundation, justification,
motivation, ground, raison de etre, validation, reasoning,
logic.

1
interest to perform a certain work while
some others have been blessed with
potentials and ability to perform some
other work. This generates mutual
cooperation (ta`awun/‫ )ﺗﻌﺎون‬and they are
able to help each other and all can live a
life conveniently (bi’l-yusr/‫) ۡ ﯿُﺴ ۡ ﺮ‬.‫ﺑ ِﺎﻟ‬If one
is interested in commerce and trade, the
other is interested agriculture and still
another in war and politics. Similarly
some go after seeking knowledge and
wisdom while others learn art, skill and
manufacture. System of sale and
purchase came into existence. For every
activity and non-activity there is a
Shari`ah value (Hukm/‫)ﺣ ُﮑﻢ‬2 in Islam3 as
2
A Shari`ah value is called a Hukm/‫ُﮑ ۡ ﻢ‬.‫ﺣ‬God Almighty is
the Law Giver. With His leave the Messenger of Allah
(‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬is also Law Giver. Their every
command and prohibition is a law and binding on the
believers. Law Giver is called Hakim or Shari`. From
among the believers those persons who are vested with the
authority (to run the affairs of the people being blessed with

2
capacity and capability to do so as responsible human
beings with full sense of accountability to their conscience,
to the people whom they govern to question their authority,
conduct, and fair dealing, and to their Creator i.e. God
Almighty before whom they are to appear on the Day of
Judgment and to answer for every word they utter and for
every action they do) are called ‘Uli al-Amr/‫ِﯽ اﻷ ۡ ﻣ ۡ ﺮ‬.‫ُوﻟ‬In‫ا‬
Islam there is no dichotomy of secular and religious.
Every act done with intention has a consequence according
as to the intention. The Messenger of Allah ( ‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ‬
‫ )وﺳﻠﻢ‬said: Actions are to be adjudged according to the
intentions. The full text of the Hadith is: On the pulpit
`Umar bin al-Khattab (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬said: I heard the
Messenger of Allah (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬saying: The
reward of deeds depends upon the intentions and every
person will get the reward according to what he has
intended. So who ever emigrated for worldly benefits or for
a woman to marry, his emigration was for what he emigrate
for. [Sahih, Bukhari, on the authority of `Umar bin al-
Khattab (‫)رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬, Volume 1, the Book of
Revelation, Hadith No. 1]. Dr. Muhammad Mohsin Khan
of Islamic University, al-Madinah al-Munawwarah has
translated Sahih Bukhari into English which has been
published by Kazi Publications from Lahore. He has
explained in his marginal note No.1 under this hadith that
the Holy Prophet (‫ﱠﯽ )ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬said
‫ ﺻ َ ﻠ‬this on the
occasion of some one’s emigration from Mecca to Madinah
not for the sake of the Islamic cause but to marry a woman
who had stipulated that he should emigrate if he wanted to
marry her. Anyhow, this hadith implies a general principle.

3
i.e., One is rewarded for his deeds according to his real
intentions not according to his actual deeds which might be
good in them but motivated by an ill intention.
Every word and action is complementing and
supplementing both the phenomenon. Thus behaviour in
Islam is not devoid of religion and religion is not devoid of
leading life in this world. This manner of life has been
termed as Taqwa/ ٰ ‫ﺗﻘﻮی‬. Taqwa/ ٰ ‫ﺗﻘﻮی‬has many shades of
meanings and all shades are to be reflected in the life
conduct of a believer.
3
Islam is the last message of God Almighty conveyed to
the whole mankind through Hadrat Muhammad, the Last
Prophet and Messenger of Allah (‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬. It
was the Arch Angel Hadrat Jibril Amin (‫ )ﻋﻠﯿہ اﻟﺴﻼم‬who
revealed it on the heart of Hadrat Muhammad [ ‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ‬
‫ ]وآﻟہ وﺳﻠﻢ‬which is now called the Holy Qur’an or Kitabullah
or Kalamullah and its practical demonstration was made
known in the excellent model (’Uswah Hasanah/‫)أﺳﻮة ﺣﺴﻨۃ‬
of his life which was his Sunnah which is preserved in the
storage of authentic Ahadith. Whatever he spoke is called
Hadith Qauli, whatever he practiced is called Hadith Fi`li
and whatever was done by any other person and he [ ‫ﺻﻠﯽ ﷲ‬
‫ ]ﻋﻠﯿہ وآﻟہ وﺳﻠﻢ‬observed silence was termed as his tacit
approval and called Hadith Taqriri. Thus both the Holy
Qur’an and Sunnah of the Messenger of Allah ( ِ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ‬
‫ ا ٓ) ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬are
َ ‫ و‬the primary sources of Islamic law and the
Ijma` and Qiyas the secondary sources thereof. Din has
become complete and perfect and solution of all problems
is to be sought from these sources. Where a direct text of
the Holy Qur’an is available it shall be followed. Then

4
where a direct text of Hadith is available that shall be
followed. Where direct text is not available and a consensus
of the Companions (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨﮩﻢ اﺟﻤﻌﯿﻦ‬is available
that shall be followed. When no consensus is available the
competent and fairly qualified jurist (mujtahid/‫ )ﻣﺠﺘﮭﺪ‬will
exert his full labour with full sincerity to make a personal
judgment in the light of the said three sources. This is not
making of a new Shari`at. Now no new Shari`at is to come
till the last Day. The Holy Qur’an has left no ambiguity in
this behalf that Islam is the Perfect Din. The authority on
this is available in the Holy Qur’an in

          

        

           

          

        

            

 
Forbidden to you (for food) are: dead meat, blood, the flesh
of swine, and that on which hath been invoked the name of
other than Allah. that which hath been killed by strangling,

5
or by a violent blow, or by a headlong fall, or by being
gored to death; that which hath been (partly) eaten by a
wild animal; unless ye are able to slaughter it (in due form);
that which is sacrificed on stone (altars); (forbidden) also is
the division (of meat) by raffling with arrows: that is
impiety. This Day have those who reject Faith given up all
hope of your religion: yet fear them not but fear Me. This
Day have I perfected your Religion for you, completed My
favour upon you, and have chosen for you Islam As your
religion. But if any is forced by hunger, with no inclination
to transgression, Allah is indeed Oft-forgiving, Most
Merciful.
[5:3]

The Holy Qur’an has also left no ambiguity in this behalf

that Hadrat Muhammad is Allah’s Messenger and that he
is the Last of all the Prophets [‫]ﺻﻠﯽ ﷲ ﻋﻠﯿہ وآﻟہ وﺳﻠﻢ‬and no
prophet is to come now till the last Day. The authority on
this is also available in the Holy Qur’an in the following
glorious verse:
           

      

Muhammad is not the father of any of your men, but (He
is) the Messenger of Allah, and the seal of the Prophets:
and Allah has full knowledge of all things.
[33:40]

6
to its validity and invalidity. Hence
where Islam teaches the rule of conduct
in the matter of true beliefs and valid
conceptions, morals and habits and tells
the manners of worship of God and
obeying God and His Messenger [ ‫ﺻﻠﯽ ﷲ‬
‫ ]ﻋﻠﯿہ وآﻟہ وﺳﻠﻢ‬it also provides guidance in
the matters of trade, commerce and
mutual dealings. This is to leave no s
aspect of human life without guidance in
the light of the Holy Qur’an and Sunnah
of the Messenger of Allah ( ٓ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا‬
‫ﻟ ِہ ٖ) و َ ﺳ َﻠ ﱠﻢ‬and Muslims may not look
towards others in these affairs.

It is the extension of the legal principles available in the

primary sources by exercising Ijtihad in the light of the
Holy Qur’an and Sunnah of the Messenger of Allah ( ُ ‫ﺻ َ ﻠ ﱠﯽ ﷲ‬
‫) و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬.ِ ‫ﻋ َﻠﯿ ۡ ہ‬

7
The guidance (hidayat/‫)ھﺪاﯾۃ‬4 is
extremely necessary for the reason that
validity 5or invalidity6 of any act 7in
Islam is subject to an act being lawful or
unlawful according to the Injunctions of
Islam as available in the Holy Qur’an
and Sunnah of the Messenger of Allah
(‫)ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬.‫ﺻ َ ﻠ ﱠﯽ‬
The Holy Qur’an says:

4
Guidance in Arabic is called hidayat/‫ ھﺪاﯾۃ‬and “hidayat” is
to make reach the struggler to the goal/ to have access to
the goal. In Arabic it is explained as ’Isal ’ila’l-matlub/
‫ اﯾﺼﺎل اﻟﯽ اﻟﻤﻄﻠﻮب‬.
5
Validity is called Sihhat/‫ﺻ ِ ﺤ ّ ۃ‬.
6
Invalidity is called Ghayr Sihhat/ ‫ﻏﯿﺮ ﺻ ِ ﺤ ّۃ‬.
7
`Amal/‫ ﻋﻤﻞ‬means an act, an action, an operation, a
performance, a deed, a work. Its plural is A`mal/ ‫اﻋﻤﺎل‬
which means acs, actions, operations, performances. Good
deeds are called A`mal Salihat/‫ اﻋﻤﺎل ﺻﺎﻟﺤﺎت‬and bad deeds
are called A`mal Sayyi’at/‫اﻋﻤﺎل ﺳﯿﺌﺎت‬.

8
      

      

   

And do not eat up your property among
yourselves for vanities, nor use it As bait
for the judges, with intent that ye may
eat up wrongfully and knowingly a Little
of (other) people's property.
[2:188]
     

      

         

  

9
O ye who believe! Eat not 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 Verily Allah
hath been to you Most Merciful!
[4:29]
By mutual consent or mutual good-will
also requires the knowledge of Shari’ah
rules on the point. Without learning or
knowing them from competent scholars
the proper identification of lawful or
unlawful is not possible. Hence mere
mutual consent in acquisition of an
income will not make such an income as
lawful earning.
The Holy Qur’an also says:

10
     

      


So eat of the sustenance which Allah has
provided for lawful and good; and be
grateful for the favours of Allah, if it is
He whom ye serve.
[16:114]
The Messenger of Allah ( ٖ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ‬
‫ و َ) ﺳ َﻠ ﱠﻢ‬said: A person who acquires
unlawful property, even if he gives it in
charity that shall not be acceptable and if
he spends it , there shall be no blessing in
it and if he leave it as his estate at the
time of his death then it is a fuel of Hell
for him.8

8
Musnad Ahmad bin Hanbal.

11
The Messenger of Allah ( ٖ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ‬
‫و َ) ﺳ َﻠ ﱠﻢ‬also said:
Seeking lawful earning is also a duty
after the compulsory duties.9

The biggest medium for acquisition of

property is buying and selling.

SUPERIORITY OF LAWFUL
EARNING BY MEANS OF TRADE
AND COMMERCE

The Messenger of Allah ( ٖ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ‬

‫و َ) ﺳ َﻠ ﱠﻢ‬said: No food is better than the food
earned by a person with his own hands.
Certainly, Hadrat Da’ud (‫ )ﻋﻠﯿہ اﻟﺴﻼم‬used
to earn his livelihood by his own
handicraft. 10

9
Bayhaqi, Shu`ab al-Iman,
10
Sahih , Bukhari,

12
Allah makes a person His favourite who
earns by means of his profession.11

Once it was submitted before the

Messenger of Allah ( ٖ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ‬
‫) ﺳ َﻠ ﱠﻢ‬:
َ ‫ و‬O the Messenger of Allah ( ُ ‫ﺻ َ ﻠ ﱠﯽ ﷲ‬
‫ﻋ َﻠﯿ!ۡ ہ ِ) و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬Which earning is the
purest?
He (‫ﷲﻠُ ﱠ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬
َ‫ﺻ‬
) ‫ﯽ‬said: Earning
by a persons with his own hands and a
good sale.12

What is a good sale?

A good sale is that sale in which there is

no dishonesty or fraud and there is also
no irregularity in it.

11
Tabrani,
12
Ahmad, Tabrani and Hakim.

13
What is an Irregularity?

An irregularity (fasad/‫ )ﻓﺴﺎد‬in an action is

the doing of an act which renders it void,
but the moment the void element is
removed the act reverts to its original
position of lawfulness.

For example, a real sister of one’s own

wife falls among those women who are
within prohibited degrees according to
the following verse of the Holy Qur’an:

   

    

    

14
    

     

      

     

     

         

 
Prohibited to you (for marriage) are:-
your mothers, daughters, sisters; father's
sisters, Mother's sisters; brother's
daughters, sister's daughters; foster-
mothers (Who gave you suck), foster-
sisters; your wives' mothers; your step-
15
daughters under your guardianship, born
of your wives to whom ye have gone in,-
no prohibition if ye have not gone in;-
(Those who have been) wives of your
sons proceeding from your loins; and
two sisters in wedlock at one and the
same time, except for what is past; for
Allah is Oft-forgiving, Most Merciful;-
[4:23]

The moment a person marries the other

sister of his wife he commits the sin of
violating this prohibition. It makes the
marriage fasid. The reason is that the
earlier marriage subsists. But if such
person divorces the first wife (who is the
real sister of this second woman) after
marrying the second woman, this second
marriage becomes defect-less and the
irregularity goes of.

16
The Messenger of Allah ( ٖ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ‬
‫ و َ) ﺳ َﻠ ﱠﻢ‬said: An honest trader will be
among those on the Day of Judgment
who are Prophets (al-Nabiyyin), the most
truthful ones (al-Siddiqin) and the
martyrs (al-Shuhada’).13

The Messenger of Allah ( ٖ ‫ﺻ َ ﻠ ﱠﯽ ﷲ ُ ﻋ َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ‬

‫و َ) ﺳ َﻠ ﱠﻢ‬said: Traders will be raised impious
except those who are God-fearing and
deals goodly with the people and speaks
the truth.14

Why the traders have been termed as

wicked?

All the traders are not termed as wicked.

Wicked traders are those who cheat their

13
Sunan, Trimidhi; and Sunan Darimi.
14
Sunan Tirmidhi, Sunan Ibn Majah and Sunan Darimi.

17
customers, tell a lie to them concerning
the goods they sell, and use every such
tactic whereby they earn unlawful gain.
Where a trader is honest, God fearing,
truthful and does not keep his customer
in darkness about any open or hidden
fault or defect in the goods, such a trader
has been praised. Trade is a noble
profession when it is carried on
truthfully, honestly and according to the
injunctions of the Holy Qur’an and
Sunnah of the Messenger of Allah ( ‫ﺻ َ ﻠ ﱠﯽ‬
‫)َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬.‫ﷲ ُ ﻋ‬
It is the misconduct of the traders with
the consumers or customers that market
have been termed as the worst place, and
to visit the market without a dire
necessity has been referred to as bad.
However, the Messenger of Allah ( ‫ﺻ َ ﻠ ﱠﯽ‬
‫ﻋ )َﻠﯿ ۡ ہ ِ و َ ا ٓ ﻟ ِہ ٖ و َ ﺳ َﻠ ﱠﻢ‬said:
ُ ‫ ﷲ‬Who so while
entering in to the market recites the

18
following supplication (du`a/‫ )د ُ ﻋ َﺎء‬there
will be recorded a hundred thousand fold
virtues and out of his deed-sheet a
hundred thousand sins will be omitted:
‫ﻻ اﻟہ اﻻ ﷲ وﺣﺪه ﻻ ﺷﺮﯾﮏ ﻟہ ﻟہ اﻟﻤﻠﮏ و ﻟہ اﻟﺤﻤﺪ‬
‫ﯾﺤﯽ و ﯾﻤﯿﺖ و ھﻮ ﺣﯽ ﻻ ﯾﻤﻮت ﺑﯿﺪه اﻟﺨﯿﺮ وھﻮ ﻋﻠﯽ‬
‫ﮐﻞ ﺷﯽء ﻗﺪﯾﺮ‬
La Ilaha Illalllahu Wahdahu la Sharika
lahu lahul-mulku wa lahul-hamdu Yuhyi
wa yumitu wa huwa hayyun la yamutu
biyadihil-khayr wa huwa `ala kulli
shay’in Qadir.15

The scholars advise that unless a person

becomes well versed with the issues
relevant to sale and purchase as to their

15
Musnad Ahmad bin Hanbal, Sunan Tirmidhi, Mustadrak
Hakim, and Sunan Ibn Majah on the authority of Ibn
`Umar.

19
validity and invalidity, he should not
engage himself in such business.16

16 Fatawa `Alamgiri, (also known as Fatawa-i-Hindiya

in Turkey, Egypt and Syria) is a compilation of law
created at instance of
the Mughal Emperor Aurangzeb (He was son of
Shahjahan bin Jahangir bin Akbar bin Humayun bin
Babur. He was born 1n 1618 and died in 1708. He
opted the titled of `Alamgir for himself and occupied
the throne in 1658 AD. His surname was Muhyuddin.
He could speak seven languages, namely, Urdu,
Persian, Arabic, Turkey, Hindi.). This compilation is
based on Sunni Islam's Sharialaw, and was the work
of many scholars, principally from
the Hanafi school. In order to compile it Aurangzeb
gathered 500 fuqaha, 300 from the Indian
subcontinent, 100 from Iraq and 100 from the Hejaz.
The Fatawa-e-Alamgiri is notable for several reasons:
 It spanned 30 volumes
 It served as the basis of law and doctrine
imposed by Aurangzeb throughout his empire.
One of its compiler was Shah Abdul Rahim, founder
of Madrassah e Rahimiyyah, Shah Waliullah the last
of the Muslim divines of India, was his son.
http://en.wikipedia.org/wiki/Fatawa-e-Alamgiri
downdloaded on 19-11-2011.

20
Aurangzeb was a strict follower of Sufism and used to
carry out his personal expenses by stitching caps
which are still worn by Muslims while conducting their
prayers, and by writing The Holy Quran.
Aurangzeb was a Sufi and followed the Naqshbandi-
Mujaddidi method of Sufism. He was a disciple of
Khwaja Muhammad Masoom, the third son and
successor of the founder of Mujaddidi order
Shaykh Ahmad Sirhindi. His letters to Shayk and the
replies from him show that he was highly devoted to
him and followed him in every matter of his life and
rule. Though the Shaykh was not involved in politics,
Aurangzeb established Islamic law inspired and
instructed by him.
Soon after coronation, he wrote to Shaykh that due to
the duties of the empire, he was unable to attend his
shaykh's company, therefore he should send one of
his noble sons to the capital for spiritual and Islamic
guidance to Aurangzeb. The shaykh sent his son,
Khwaja Saif ad-Din Sirhindi (5th son) who was a
scholar and Sufi shaykh by himself and only 27 years
old. He not only guided Aurangzeb to observe the
Islamic law properly, he was also the source of most
of the Islamic rules Aurangzeb implemented in the
empire. One of those is the ban on musical.
instruments throughout the country, which was
initially suggested by Khwaja Saif ad-Din in
accordance with the Sharia law.

21
Definition of Sale

In Arabic the sale is called al-bay`/‫اﻟﺒﯿﻊ‬. It

is a word having two meanings, one
meaning total opposite to the other
meaning. Such words are called al-
Addad/‫ اﻻﺿﺪاد‬or the words which contain
Mutadad al-m`ana/ ٰ ‫ﺘﻀﺎد اﻟﻤﻌﻨﯽ‬.‫ ﻣ‬Thus one
meaning of this word ‫ اﻟﺒﯿﻊ‬is “ ‫(اﻻﺷﺮاء‬to
buy)” and the other meaning of this very
word is “‫(اﻟﺒﯿﻊ‬to sell)”. This word has

Many other famous Sufis also revered Aurangzeb,

including the Punjab Sufi Sultan Bahu (ca 1628 -
1691), who wrote a book with spiritual secrets
specially for him. The book was written in Persian and
titled "Aurang-i-Shāhī", to resemble the name of the
emperor. The author has praised the emperor with
titles such as The Just King.
http://en.wikipedia.org/wiki/Fatawa-e-Alamgiri
downdloaded on 19-11-2011.

22
been used in the Holy Qur’an in various
constructs at 15 places.17

17
Those glorious verses in which this word has been used
as a noun or verb having the root letters [‫ ]ب ی ع‬are hereby
reproduced with English Translation of Abdullah Yusuf
Ali:
        

          

         

           

 
111. Allah hath purchased of the believers their persons and
their goods; for theirs (in return) is the Garden (of
Paradise): They Fight in His Cause, and slay and are slain:
a promise binding on Him In truth, through the Law, the
Gospel, and the Qur'an: and who is more faithful to His
Covenant than Allah. Then rejoice in the bargain which ye
have concluded: that is the achievement supreme.
[9:111]

23
          

          

        

         

12. O Prophet! when believing women come to Thee to
take the oath of fealty to thee, that They will not associate
In worship any other thing whatever with Allah, that They
will not steal, that They will not Commit adultery (or
fornication), that They will not kill their children, that They
will not utter slander, intentionally forging falsehood, and
that They will not disobey Thee in any just matter,- then do
Thou receive their fealty, and pray to Allah for the
forgiveness (of their sins): for Allah is Oft-forgiving, Most
Merciful.

[60: 12]

          

            

   

10. Verily those who plight their fealty to Thee do no less
than plight their fealty to Allah. The hand of Allah is over

24
their hands: then any one who violates His oath, does so to
the harm of His own soul, and any one who fulfils what He
has covenanted with Allah,- Allah will soon grant Him a
great reward.

[48: 10]

         

          
18. Allah’s good pleasure was on the believers when They
swore fealty to Thee under the tree: He knew what was In
their hearts, and He sent down tranquillity to them; and He
rewarded them with a speedy Victory.

[48:18]

          

          

           

             

         

25
          

         

            

            

        

           

             

    

282. O ye who believe! when ye Deal with Each other, In
transactions involving future obligations In a fixed period
of time, reduce them to writing let a scribe write down
faithfully As between the parties: let not the scribe refuse to
write: As Allah has taught him, so let Him write. Let him
who incurs the liability dictate, but let him fear His Lord
Allah, and not diminish aught of what He owes. If the party
liable is mentally deficient, or weak, or unable himself to
dictate, let His guardian dictate faithfully, and get two
witnesses, out of your own men, and if there are not two
men, then a man and two women, such As ye choose, for
witnesses, so that if one of them errs, the other can remind

26
her. The witnesses should not refuse when they are called
on (for evidence). Disdain not to reduce to writing (your
contract) for a future period, whether it be small or big: it is
juster In the sight of Allah, more suitable As evidence, and
more convenient to prevent doubts among yourselves but if
it be a transaction which ye carry out on the spot among
yourselves, there is no blame on you if ye reduce it not to
writing. But neither take witness whenever ye make a
commercial contract; and let neither scribe nor witness
suffer harm. If ye do (Such harm), it would be wickedness
In you. So fear Allah. For it is Allah that teaches you. And
Allah is well acquainted with all things.

[2:282]

            

         

254. O ye who believe! spend out of (the bounties) we have
provided for you, before the Day comes when no
bargaining (will avail), nor friendship nor intercession.
those who reject Faith They are the wrong-doers.

[2: 254]

27
         

           

           

            

   

275. those who devour usury will not stand except As stand
one whom the evil one by His touch hath driven to
madness. that is because They say: "Trade is like usury,"
but Allah hath Permitted trade and forbidden usury. those
who after receiving direction from their Lord, desist, shall
be pardoned for the past; their case is for Allah (to judge);
but those who repeat (the offence) are companions of the
Fire: They will abide therein (for ever).

[2:275]

         

           
31. speak to My servants who have believed, that They may
establish regular prayers, and spend (in charity) out of the
sustenance we have given them, secretly and openly, before

28
the coming of a Day In which there will be neither mutual
bargaining nor befriending.

[14:31]

           

        

37. by men whom neither traffic nor merchandise can
divert from the remembrance of Allah, nor from regular
prayer, nor from the practice of regular charity: their (only)
fear is for the Day when hearts and eyes will be
transformed (in a world wholly new),-

[24:37]

          

           
9. O ye who believe! when the call is proclaimed to prayer
on Friday (the Day of Assembly), hasten earnestly to the
remembrance of Allah, and leave off business (and traffic):
that is best for you if ye but knew!

[62: 9]

29
What is Sale?

Sale in the generic sense, is the

transfer of a definite ascertained
object, having legal value, in exchange
for an equivalent, or, according to the
            

        

         

      

40. (They are) those who have been expelled from their
homes In defiance of right,- (for no Cause) except that
They say, "Our Lord is Allah.. did not Allah Check one set
of people by means of another, there would surely have
been pulled down monasteries, churches, synagogues, and
mosques, In which the name of Allah is commemorated In
abundant measure. Allah will certainly aid those who aid
His (cause);- for Verily Allah is full of strength, Exalted In
Might, (able to enforce His Will).

[22:40]

30
Shafi`i Law, the transfer of a definite
use of property in perpetuity in
exchange for a price.
It includes a number of contracts
among which sale in the specific sense
is the transfer of a definite ascertained
object seen by (or known to) both the
parties for a definite equivalent to
money. 18It is divided in to four kinds
of property for a price (absolute sale),
exchange or sale of cash for cash, by
immediate payment against future
delivery and sale by barter.
Sale means exchange of goods with other
goods in a particular manner.

18
On Copntracts, see Hidayah, II, 360 ff; Durr al-Mukhtar,
III, iff: Sharh Viqayah, III, 587 ff: Kanz al-Daqa’iq, 194 ff:
Minhaj , 123 ff. Mejelle, Article 149, 167 ff. FAth al-Qadir
311 ff. Quoted from Islamic Jurisprudence in the Modern
World, Anwar Ahmad Qadiri, Hadrat Shah Waliyullah
Muhaddith Dehlawi (‫)رﺣﻤۃ ﷲ ﻋﻠﯿہ‬. Muhammad Ashraf,
Lahore, 1973, p. 325.

31
Sale is some times made verbally and
some time by some action.
Essential elements of an oral sale are
offer and acceptance. For example: One
party said: I sold. The other party said I
purchased.
In a sale by action the essential elements
are to give and to take and this giving
and taking tantamount to offer and
acceptance. For example: A vegetable
seller makes bundles of the vegetables
and places them at a place for sale
showing that each bundle is of the price
of one rupee. The buyer comes, pays one
rupee picks up a bundle and goes away
without uttering a single word from
either side. The action of the both the
parties here tantamount to One party’s
offer for sale of the said goods and the
other party’s acceptance of the price
shown. Such sort of sale is termed as

32
(bay` tu`ati/‫)ﺑﯿﻊ ﺗﻌﺎطﯽ‬. Here one party is
called the seller (Ba’i`/‫ )ﺑﺎﺋﻊ‬and the other
party is called a buyer (mushtari/‫)ﻣﺸﺘﺮی‬.

What is property (mal/‫?)ﻣﺎل‬

ACCORDING TO HNAFI SCHOOL

OF THOUGHT:
Property is that thing towards which
human dispositions incline and
preservation of which is possible for use
at a time of need and whose value is
established.19
Value (maliyyat/‫ ﻣ) َ ﺎﻟ ِﯿﱠﺖ‬of a property is
established by the enrichment
(tamawwul/‫ ﺗ)َﻤ َﻮ ﱡ ل‬which it brings to all or
some people.
Thus property or wealth (mal/‫ )ﻣ َ ﺎل‬is that
which brings enrichment
(tamawwul/‫)َﻤ َﻮ ﱡ ل‬.‫ ﺗ‬Evaluation
19
Ibn `Abidin, Radd al-Muhtar, Vol. 4, p. 3.

33
(taqawwum/‫ﺗ َ)ﻘ َﻮ ﱡ م‬20 means enrichment and
permissibility of its use (Ibahat-i-
Intifa`/‫َﺎﺣ َ ﺖ ِ ا ِﻧ ۡ ﺘ ِﻔ َ ﺎع‬
). ‫ﺑ‬Both
ِ‫ا‬ these are
essential elements of enrichment
(tamawwul/‫)َﻤ َﻮ ﱡ ل‬.‫ﺗ‬

20
‫ اﻟﺨﻤﺮ ﻏﯿﺮ ﻣﺘﻘﻮﻣۃ ﻓﯽ ﺣﻖ اﻟﻤﺴﻠﻢ‬: ‫ و ﻣﻨہ‬،‫ ﮐﻮن اﻟﺸﯽء ذو ﻗﯿﻤۃ‬:‫اﻟﺘﻘﻮم‬
Al-Taqawwum is from the verb Qawwima which means to
become valuable. And for this reason it is said that wine is
valueless for a Muslim as it is unlawful. An unlawful thing
is of no value for a Muslim how ever valuable it may be in
the case of a non-Muslim.
Al-Mutaqawwam is an accusative noun (‫ )اﺳﻢ ﻣﻔﻌﻮل‬from the
verb qawwima. It means the becoming of a thing valuable
monetarily [‫]ﮐﻮن اﻟﺸﯽء ذو ﻗﯿﻤۃ ﻣﺎﻟﯿۃ‬. It is the quality existing
in a thing that make it eligible to become a consideration in
contracts. Causes of making a thing non valuable are:
(i) The greatness or dignity (Karamah/‫ )ﮐﺮاﻣۃ‬inherent in
a thing as: the Holy Qur’an and the free human
person. In case of an evaluation or pricing of them
there is degradation of their dignity.
(ii) Law considering a thing low and mean
(Mahanah/ ‫ ) ﻣﮭﺎﻧۃ‬as: the intoxicants, pig and urine.
(iii) Prohibition (Nahi/‫ )ﻧﮭﯽ‬of having and using a thing
as: the idols and the musical instruments. And
(iv) Triviality, Insignificance, worthlessness, pettiness
of a thing (Tafahat / ‫) ﺗﻔﺎھۃ‬. It is from the verb tafiha
i.e., a particle of sand

34
Thus where a thing is permissible but
brings no enrichment as a single seed of
wheat is permissible to be used but it
causes no enrichment to the owner or
possessor of it, such a thing is not mal.
Similarly where there is enrichment but
to use it is not permissible then such a
thing is mal/‫ ﻣﺎل‬but it is not
mutaqawwam/‫ﻣﺘﻘﻮ ّ م‬. For example, the
wine (al-Khamr/‫ )اﻟﺨﻤﺮ‬is mal ghayr
mutaqawwam for a Muslim. It brings
enrichment i.e. it is mal but its use by a
Muslim is prohibited. The Holy Qur’an
says:

       

      

35
       

     

 
They ask Thee concerning wine and
gambling. Say: "In them is great sin, and
some profit, for men; but the sin is
greater than the profit." They ask Thee
How much They are to spend; say:
"What is beyond your needs." Thus doth
Allah make Clear to you His Signs: In
order that ye may consider-

[2:219]

36
     

    

     

     

      

       

O ye who believe! Intoxicants and
gambling, (dedication of) stones, and
(divination by) arrows, are an
abomination,- of Satan's handwork:
eschew such (abomination), that ye may
prosper.
Satan's plan is (but) to excite enmity and
hatred between you, with Intoxicants and

37
gambling, and hinder you from the
remembrance of Allah, and from prayer:
will ye not then abstain?
[5:90 and 91]
WHAT IS A CONSIDERATION IN A
CONTRACT OF SALE?

A consideration, in Arabic language is

called an `Iwad/‫ﻋﻮض‬.Its plural is
A`wad/‫ اﻋﻮاض‬.
In barter, exchange or sale both things
i.e. the goods sold and the price paid are
consideration for each other.
Where considerations are pointed out or
indicated there is no need of knowing
their quantity to make a sale valid.
However, sale shall not be valid for a
consideration not pointed out. The
quantity(miqdar/‫)ﻣﻘﺪار‬ and
quality(wasf/‫ ) وﺻﻒ‬of the thing sold
and the consideration for which it is sold

38
must be known both about their quantity
and quality. The reason is that the basic
rule in a sale is taslim/‫ ﺗ َﺴ ۡ ﻠ ِﯿ ۡ ﻢ‬and
tasallum/‫ﺴ َﻠ ّﻢ‬.َ ‫ ﺗ‬And where the quantity and
quality are unknown it would cause
disputation. On the other hand if the
goods sold and the price paid for it are
pointed out then their knowing is not
essential as in such a case there is no
apprehension of any disputation. Thus
where a seller says to the buyer: I have
sold this heap of wheat for a
consideration of so much dirhams (coins)
that are in your hand and the buyer
accepts the offer the sale is valid.

With regard to establishment, validity,

enforcement and becoming binding of
a contract of sale there are many
conditions precedent. Some among
them are as follows:

39
Conditions for establishment are four:
1. Those which must exist in the
contracting parties.
2. Those which must exist in the
very contract.
3. Those which must exist in the
place of contract.
4. Those which must exist in the
subject matter which is going to be
sold.

As for the Contracting party there are

two conditions precedent.
(i) He must be sane. Thus a sale by a
mad or insane person or a minor
who is not sane, no sale shall
come into existence.
(ii) Multiplicity. That is a single
person cannot enter into contract
with himself. There must be at

40
 least two parties. Under this basic
rule a sale by an agent of a party
in his own favour will not be
established. The exceptions are
father, executor of will and the
Judge or Court.
As for the Contract itself (nafs
`aqd/‫ )ﻧﻔﺲ ﻋﻘﺪ‬the condition is that the
acceptance must be in conformity
with the offer. It means for whatever
consideration the seller has offered
his good for sale the buyer accepts it
by payment of the same
consideration. Where there is any
violation the sale shall not be
established on account of disparity of
quality (tafarruq Sifat/‫)ﺗﻔﺮق ﺻﻔۃ‬.

As for the place of contract (makan

`aqd/‫ )ﻣﮑﺎن ﻋﻘﺪ‬the condition is that it
should be single session. Where

41
sessions are different the sale shall not
be established.

As for the thing sold or the subject

matter of the contract (ma`qud
`Alayh/‫)ﻣﻌﻘﻮد ﻋﻠﯿہ‬ there are six
conditions, namely:
(i) Existence;
(ii) Mal;
(iii) Qimti;
(iv) Worhty to be owned;
(v) Owned by the seller; and
(vi) Worthy to be delivered.

As for enforcement there are two

conditions, namely:
(i) Ownership or guardianship; and
(ii) Exclusively owned by the Seller.
No person other than the seller
should have any right in the
goods to be sold.

42
As for conditions for validity of sale,
those are of two kinds, namely, general
conditions for validity of sale and
Special conditions for validity of sale.

As for the general conditions for

validity of sale are concerned those are
as follows:
(i) Time is not the essence of the sale.
(ii) Goods sold are known.
(iii) Price paid is known
(iv) Free from all irregular
stipulations.
(v) Utility or usefulness of sale.
(vi) In case of movable property and
indeterminate goods those must
be in possession.
(vii) In the case of an exchange of the
kind of Tauliyah the
consideration is named.

43
(viii) In profit bearing commodities
there must be similarity.
(ix) There should not be an iota of
Riba or interest in the
transaction. It must be interest
free transaction from all angles.
Riba is unlawful in all shapes.
Sale is lawful when it is free from
interest.
(x) In Bay` Salam the conditions of
Salam must exist.
(xi) In Bay` Saraf there must be
possession of the goods sold
delivered to the buyer by the
seller before parting of the
parties.
(xii) In cases of Bay` Murabahah,
Bay` Tauliyah, Ishtirak and Bay`
Wadiyyah the first cost price
must be known.

44
As for the essential condition after the
sale is established and enforced it must
be free from all sorts of options, like
Khayar Shart, Khayar `Ayb etc.

WHAT IS MEANT BY THE TERM

ATHMAN MUTLAQAH?

Al-Athman al-Mutlaqah means

unrestricted, unlimited, undefined,
uncertain, unfixed prices.
Example: Where the seller says: I have
sold this good to you for whatever be its
price. How will the buyer know
“Whatever be or is its price”. Hence until
and unless the seller himself determines
its price and the buyer also agrees to pay
it the sale shall not be valid in the eye of
law.

45
WHAT IS THAMAN HAL ( ‫ﺛﻤﻦ‬
‫)ﺣﺎل‬AND WHAT IS THAMAN
MU’AJJAL (‫? )ﺛﻤﻦ ﻣﺆﺟﻞ‬

Both are sales. The time of payment of

consideration or sale price is different. In
one case it is there and then. In the other
case it is postponed to some later date
and time which is also well known and
certain.
Thaman Hal/ ‫ ﺛﻤﻦ ﺣﺎل‬is sale on cash
payment. It is valid as the very
requirement of the contract is the instant
payment of the price or consideration.
Thaman Mu’ajjal (‫ )ﺛﻤﻦ ﻣﺆﺟﻞ‬is on credit
in which there is immediate delivery of
goods by the seller to the buyer but the
buyer makes payment of the price on a
certain future date, time and place agreed
to mutually. The period of payment is
certain and known. Such sale is valid as

46
in the Divine command: ‫اﺣﻞ ﷲ اﻟﺒﯿﻊ‬
(Allah has made the sale lawful) the
lawfulness of sale is unrestricted.
Further, the Messenger of Allah ( ‫ﺻﻠﯽ ﷲ‬
‫ )ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬himself had purchased corn
from a Jew whose name was Abu al-
Shahm and had pledged his shield.21 In
case
Where a person leaves the price
uncertain, then it would be carried to
mean according to the coins prevalent in
the town. Where different coins are
current in the town the sale will be
irregular unless the seller states clearly
which coin he means to take out of the
many current in the market.

21
Sahih , Bukhari on the authority of Hadrat `Aishah
Siddiqah (‫ ;)رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨﮩﺎ‬Sahih , Muslim on the
authority of Hadrat `Aishah Siddiqah (‫;)رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨﮩﺎ‬
Sunan al-Byhaqi on the authority of Hadrat Jabir ( ‫رﺿﯽ ﷲ‬
‫)ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬.

47
Sale of all sorts of food and corn is valid
whether such sale is made by measure
(ً‫)ﻣﮑﺎﯾﻠۃ‬, or by assessment (ً‫ )ﻣﺠﺎزﻓۃ‬or by
such determinate pot whose capacity to
contain is unknown or by such
determinate stone whose weight is
unknown.

WHAT IS THE RULE WHERE

QUANTITY OF THE
CONSIDERATION OR PRICE IS
MENTIONED BUT THE QUALITY
OR ATTRIBUTE OF THE SAME IS
NOT KOWN?

In such a case the city or town in which

the sale has taken place the coin
prevalent shall be the standard to know
the market price of such coin. Where
more than one coin is prevalent in that
town or city having different market

48
values as in the case of dirhams say,
Banda’i, Salimi, Qatiyabi, maghrabi,
ghauri etc. etc. and none of them is
mentioned in the contract then the sale
shall be irregular (fasid/‫)ﻓﺎﺳﺪ‬. The reason
is that such ignorance or lack of
knowledge (jahalat/‫ )ﺟﮭﺎﻟۃ‬is to become
cause of disputation (munaza`at/‫)ﻣﻨﺎزﻋﺖ‬.

Coins are of four kinds:

(i) Those which are the same in
custom and value;
(ii) Those which are different in both;
(iii) Those which are the same in
custom only; and
(iv) Those which are the same in
value.
In the above sales only the third is
irregular (fasid/‫)ﻓﺎﺳﺪ‬
And the remaining sales i.e. Nos. (i). (ii)
and (iv) are valid. Thus in the case of

49
sales of the category of Nos.(ii) and (iv)
the most prevalent shall be reliable and
in the case of No. (i) the buyer shall have
the option to pay any coin .

Corn is not the wheat corn only. It

includes all kinds of corn.

Where corn is sold in consideration of a

corn of a different kind as to sell wheat
corn for barley corn then it may be sold
by measure or by filling in some pot
whose capacity is unkown or by weight
by meansof a stone whose weight is
unknown it is valid by all such ways.
The Messenger of Allah ( ‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ‬
‫ )وﺳﻠﻢ‬said: When both kinds are different,
sell as you like.22 However, for validity
22
Sahih , Muslim on the authority of `Ubadah; Sunan al-
Tirmidhi on the authority of `Ubadah; Sunan Abi Da’ud on
the authority of `Ubadah, Sunan Ibn Majah on the authority
of `Ubadah; Tabrani on the authority of Bilal; Dar Qutani

50
there are certain conditions and those are
as follows:
(i) Good sold must be distinct and
pointed out (by assessment).
(ii) The pot is not increasing or
decreasing in capacity. Thus pot
of wood or iron has no such
defect. But where the pot is of
Zanbil an Kharji, weight by
them shall be invalid. However,
weight by water-skins is valid
due to custom.
(iii) The stone should be such
which breaks.
(iv) It should not be the capital of
bay`al-salam/ ‫ ﺑﯿﻊ اﻟﺴﻠﻢ‬as it is
necessary that its quantity is
known.

on the authority of Anas and `Ubadah. [Quoted by Al-Subh

al-Nuri, Vol.1, p. 235.

51
SALE OF HEAPS OF CORN
Where a person sold a heap (Subrah/‫ﺻ ُﺒ ۡ ﺮ َ ة‬
of corn and said each Qafiz (name of a
measure) of this corn is for a
consideration of one dirham but the
seller did not disclose the quantity of the
entire heap then according to Imam Abu
Hanifah (‫ )رﺣﻤۃ ﷲ ﻋﻠﯿہ‬the sale of a single
qafiz will be valid and for the remaining
part it shall remain suspended as only
this much quantity of the goods sold and
the price thereof is known. [The bar
(mani`/‫)اﻟﻤﺎﻧﻊ‬ is ignorance (al-
Jahalat/‫)اﻟﺠﮩﺎﻟۃ‬. Till it survives (al-
baqa’/‫ )اﻟﺒﻘﺎء‬the validity (al-sihhat/‫ا)َﻟﺼ ﱢ ﺤ ﱠۃ‬
cannot take place. When ignorance is
removed (zawal al-jahalati/‫)زوال اﻟﺠﮩﺎﻟۃ‬
the bar is removed.]. For the rest the
quantity and the price are unknown.
However, if the seller tells the quantity

52
of the whole heap then the sale of whole
shall become valid.
According to the Sahibayn (Imam
Muhammad and Imam Abu Yusuf) sale
in both cases is valid. The reason is that
to make the unknown known is in their
power .According to the Zahir Hidayah
the view of the Sahibayn seems
preferable.

Where a person sold a herd of goats or a

bundle of cloth stating that one goat is
for one dirham and one yard is for one
dirham. Then according to Imam A`zam
sale is not valid even concerning a single
goat or a single yard of cloth. The reason
is that here there is difference in each
unit of the thing sold and the same price
cannot be divided to all units equally
hence there will be disputation. As
against it, the earlier case was such that

53
there was no difference between the units
of wheat i.e. its seeds. Hence in that case
sale of a Qafiz was valid. However, if at
the time of sale the quantity of the whole
herd of goat or the whole bundle of cloth
is disclosed then there is consensus of all
that the sale shall be valid. The reason is
Li zawali al-mani`i wa huwa al-
Jahalati/‫( ﻟﺰوال اﻟﻤﺎﻧﻊ و ھﻮ اﻟﺠﮭﺎﻟۃ‬that the bar
disappeared. And it was the ignorance).

Where the seller disclosed that the

quantity of the whole heap at the time of
contract is a hundred qafiz and it is sold
for a consideration of a 100 dirhams.
Later on the quantity was found less than
the disclosed one, the buyer has the
option to take it the exact existing
quantity on this rate or cancel the
contract of sale.

54
Where the quantity found was more than
the quantity disclosed by seller the
excess quantity shall not be included in
the sale and the seller has the right to
receive it back to that extent. The reason
is that the contract of sale was of a
certain and specific quantity of goods. It
was one hundred qafiz. Over and above
quantity is not included in the contract.
Hence it shall remain belonging to the
seller.

Where goods sold are cloth or land then

in case it is found less they buyer shall
have the option either to take it on full
price or discard the sale. And in case the
quantity is found more than the disclosed
one then the more shall go to the buyer.
The reason for this difference is that for
a measurable by yardstick goods the
quality is yard and there is no price as

55
against wasf. In the case of quantity i.e.
weight and measure that is not the wasf.
Hence both are different.23

ACCORDING TO SHAFI`I SCHOOL

OF THOUGHT?
Benefits and incorporeal rights are
included in the definition of mal/‫ﻣﺎل‬.24

ACCORDING TO MALIKI
SCHOOL OF THOUGHT:
The definition of mal is the same as that
of the Hanafi school.

ACCORDING TO HANBALI
SCHOOL OF THOUGHT:

23
Ibid.p.237
24
Shribini, Mughni al-Muhtaj, Vol.2 p.3.

56
Mustafa Ahmad Zarqa says that Mal is
everything that has legal and material
value among the people.25
According to Dr. Mansuri the property in
this sense refers to any tangible and
intangible thing that gives determinate
capacity to a person to use it to the
exclusion of whole world. It includes
both abstract and unreal rights. It applies
equally to the objects which have
perceptible existence in the outside
world as well as to intangible property
such as trademarks and intellectual
property.

25
Mustafa Ahmad Zarqa, al-Madkhal al-Fiqhi al-`Am,
Damascus: Matba`ah Tarbin, Vol.3, p. 122.

57
DEFINITION OF SALE.
According to Kasani “sale” is an
exchange of a useful and desirable thing
for similar thing by mutual consent in a
specific manner.26

Shirbini has also given a similar

definition.27

To bring an act within the four walls of

this definition, it must be,-
 An exchange of a thing with a similar
thing;
 Both things must be useful and
desirable;
 There must exist mutual consent of
both parties;
 The manner must be specific.

26
Kasani, Bada’i` al-Sana’i` vol. 5 p. 133.
27
Shirbini, Mughni al-Muhtaj Vol. 2:2; Ibn Qudamah, al-
Mughni Vol. 3, p. 559.

58
This definition excludes from its purview
a transaction which is unuseful.
It also excludes from its purview all such
things that are not desired by the people.
It also excludes any mode of conveying
consent which is not specific.

Dr. Mansuri has mentioned that some

jurists have added the words “for the
alienation of property” to the above
definition to denote that the purpose of
such a contract is to transfer property in
goods to the buyer, and in price to the
seller. Thus the complete definition of
sale will be as follows?
“Exchange of useful and desirable thing
for a similar thing by mutual consent for
the alienation of property.” It can also be

59
defined as exchange of property for
property with mutual consent.28

WHAT ARE CONDITIONS FOR

VALIDITY OF SALE?

Conditions of sale are:

1. The seller and the buyer both must be

of sound mind (`aqil/‫ )ﻋﺎﻗﻞ‬and not
mad or of unsound mind nor such
who cannot under stand what they are
doing.
2. Parties must not be minors;
3. The contracting parties
(muta`aqidayn/‫)ﻣﺘﻌﺎﻗﺪﯾﻦ‬ must be
distinct persons. The same person
28
Dr. Muhammad Tahir Mansuri, Islamic Law of Contracts
and Business Transactions, Shari`ah Academy,
International Islamic University, Islamabad, Ch/ 14, p. 187

60
 cannot become the seller and the
buyer. However, a father (’ab/‫ )اب‬or a
an executor of will (wasi/‫و) َ ﺻ ِ ﯽ‬29 can
sell the property of the minor and
purchase themselves or sell their own
property to the minor or a judge who
can sell the property of one orphan to
another orphan. This is permissible
when in such sale or purchase there is
welfare and benefit of the minor. 30
29
Wasiyyat/ ‫و َﺻ ِ ﯿﱠﺖ‬means a Will. It comes into operation on
death of the deceased concerning his estate. A Muslim may
make a will up to one third of his whole property in favour
of any one. However, where a will is made in favour of a
sharer it will be effective if other sharers agree and those
who do not agree , to xtent of such sharers it shall not be
enforced.
Musi/‫ﻣ ُﻮﺻ ِ ﯽ‬means the will maker.
Musi Lahu/ ٗ ‫ُﻮﺻ ِﯽ ﻟ َہ‬means
‫ﻣ‬ a person in whose favour the
will is made.
Musi `alayh means the thing concerning which the will is
made.
Wasi/‫و َﺻ ِ ﯽ‬means a person who is appointed to execute the
will.
Musa bihi means a legacy, a bequest, a will‫۔‬
30
Fatawa `Alamgiri; al-Bahr al-Ra’iq; Radd al-Muhtar.

61
4. Parties must hear and understand
each other’s statement.
5. Offer (Ijab/‫ )اﯾﺠﺎب‬and acceptance
(qabul/‫ )ﻗﺒﻮل‬must be in conformity
with each other i.e the offer must be
of the same thing which is accepted.
Where acceptance of a thing other
than offered, or accepted only a part
of the thing offered or while
accepting some different price was
stated or accepted it with a part of the
price of offer then in all such
circumstances the sale shall not be
valid. However, if the buyer accepted
the thing offered on a low price and
the seller agreed to receive that low
price as its consideration, the sale
shall be valid.
6. The offer and acceptance must be in
the same session.

62
7. Hearing of each others statement of
offer and acceptance. Thus where the
buyer said I bought but the seller
could not hear it, there will be no
contract of sale. However, if those
other persons who were present in
that very session and they heard the
statement of the buyer but the seller
insists that he has not heard it, then
legally (qada’an/ ً ‫ ﻗ)َﻀ َ ﺎء‬the statement
of the seller shall not be reliable.
8. The subject matter (thing which is
subject of sale) of the contract of the
sale must exist except when sale is of
the category of Bay` salam/ ‫ ﺑﯿﻊ ﺳﻠﻢ‬.
9. The subject matter (thing which is
subject of sale) must be such to get
benefit from it is permissible (i.e. it is
mutaqawwam/‫)ﻣ ُﺘﻘﻮ ﱠ م‬.

63
 10. That the subject matter is in the
ownership of the seller (i.e. it is
mamluk/‫) ﻠ ُﻮ ۡ ک‬.
ۡ ‫ﻣ َﻤ‬
11. The subject matter of sale must be

such the possession of which could

be delivered (i.e. it is maqdur al-
taslim/‫)ﻣﻘﺪوراﻟﺘﺴﻠﯿﻢ‬.31 This condition
is not applicable for the goods
which are to be manufactured on
order i.e. Bay` Istisna`/‫ﺑﯿﻊ اﺳﺘﺼﻨﺎع‬

31
Bay` (‫ )ﺑﯿﻊ‬means to sell. Sale of a thing. When sale is
complete the seller becomes the owner of the price and the
buyer becomes owner of the thing sold. It makes an
obligation upon the seller to deliver the thing sold to the
buyer and it makes an obligation upon the buyer to make
payment of the price. This is the case when the sale is final
(Qat`i/‫)َﻄ ۡ ﻌﯽ‬.‫ ﻗ‬Where sale is mauquf/‫ ﻣﻮﻗﻮف‬on the permission
or consent of another person , the proof of ownership will
be when permission is granted.
Ba’i` (‫ )ﺑﺎﺋﻊ‬means the seller, the vendor, one who disposes
a thing by transferring his ownership and possession to
another person.
Mushtari (‫ُﺸ ۡ ﺘ َﺮ ِی‬
) ‫ﻣ‬means buyer, the vendee, the one who
purchases a thing by payment of price as its consideration.
Mubi` (‫ﻣ)ُﺒ ِﯿ ۡ ﻊ‬means the thing sold.

64
WHAT IS OFFER (IJAB/‫ ا ِﯾ) ۡ ﺠ َ ﺎب‬AND
ACCEPTANCE (QUBUL/‫?)ﻗﺒﻮل‬

Offer and acceptance are two such words

whereby the ownership of a certain thing
belonging to a certain person is
transferred to a certain other person. The
two words give the benefit of
tamlik/‫ ﺗﻤﻠﯿﮏ‬and tamalluk/‫ﺗﻤﻠ ﱡﮏ‬.
Tamlik/‫ ﺗ َﻤ ۡﻠ ِﯿ ۡ ﮏ‬means to make another the
owner of the thing.
Tamalluk/‫ ﺗ َﻤﻠ َ ّ ﮏ‬means to become owner
of a thing.
Milk/‫ﻣ ِﻠ ۡ ﮏ‬means ownership.[pl. Amlak
i.e. properties, belongings, ownerships]
Malik/‫ﻣ َ ﺎﻟ ِﮏ‬means owner.
Mamluk/ ‫ِﻤ ۡ ﻠ ُﻮ ۡ ک‬means
‫ﻣ‬ the owned thing.
Malik means King. Its plural is Muluk
which means kings.
Malikah means a Queen.

65
Mumlikat means a State, a country
owned by a King.
Malak means an angel.
Mala’ikah means angels.
malaka/yamliku/
Amlaka/Yumliku/Tamlikan [he made
another the owner of a thing/he will
make another the owner of a thing/To
make another the owner of a thing].
Tamalluk means to become owner of a
thing

Basic Rule in the case of Tamlikat is that

when sessions become different (akhtilaf
al-majlis/‫)اﺧﺘﻼف اﻟﻤﺠﻠﺲ‬ the right of
option (to be exercised for nulling a sale
on the basis of finding some defect
(Khayar al-`ayb/‫ )ﺧﯿﺎر اﻟﻌﯿﺐ‬in the thing
sold or on the basis of inspection

66
(Khayar al-mu`ayanah/‫)ﺧﯿﺎر اﻟﻤﻌﺎﯾﻨۃ‬comes
to an end).32

How it is to be proved that a certain

session has become a certain different
session?
It is proved by showing that a party had
left the seat, started taking his food,
began talking on some other topic,
engaged in offering prayer. However,
taking of a bit out of food, drinking a
draught out of the glass of water which
was in his hand at the time of
acceptance, or completion of the Fard
prayer which he has begun does not
make the session having become a
different session.

32

67
In the books of jurisprudence the jurist
have given the title relating to sale/‫ ﺑﯿﻊ‬as:
Kitab al-Buyu`‫ ﮐﺘﺎب اﻟﺒﯿﻮع‬which means
the Book of Sales. A question arises that
bay`/ is singular and buyu`/‫ ﺑﯿﻮع‬is plural.

The word bay` in Arabic is a noun

derivative (Masdar/‫)ﻣﺼﺪر‬. And the
general grammatical rule is that a noun
which is masdar/‫ ﻣﺼﺪر‬is not brought as
dual (tathniyah/‫ ) ﺗﺜﻨﯿہ‬and plural
(jam`/‫)ﺟﻤﻊ‬. Why its plural form has been
brought in all the aforesaid books? The
answer is that a sale is of many kinds
hence the authors have brought the plural
form of the word bay`/‫ ﺑﯿﻊ‬, which is
buyu`/‫ﺑﯿﻮع‬.
The sale is of four kinds, namely,-
1. Nafidh/ ‫( ﻧﺎﻓﺬ‬enforceable at law);
2. Mauquf/ ‫( ﻣﻮﻗﻮف‬suspended)
3. Fasid /‫( ﻓﺎﺳﺪ‬Irregular)

68
 4. Batil/‫( ﺑﺎطﻞ‬Void)

With regard to the subject matter of sale

[saleable goods (mabi`/‫ ])ﻣﺒﯿﻊ‬a sale is of
four kinds, namely,-
Saleable goods (mabi`/‫ )ﻣﺒﯿﻊ‬is either
determinate (`ayn/‫ )ﻋﯿﻦ‬or indeterminate
(dayn/‫)دﯾﻦ‬.
 Bay` al-`ayn bi’l-`ayn/ ‫ﺑﯿﻊ اﻟﻌﯿﻦ ﺑﺎﻟﻌﯿﻦ‬
(Sale of a determinate good with a
determinate good). It is called Bay`
al-muqayadah/‫ﺑﯿﻊ اﻟﻤﻘﺎﯾﻀہ‬.
 Bay` al-dayn bi’l-dayn/‫ﺑﯿﻊ اﻟﺪﯾﻦ ﺑﺎﻟﺪﯾﻦ‬
(Sale of indeterminate good with
another indeterminate good). It is
called Bay` al-Sarf/‫ ﺑﯿﻊ اﻟﺼﺮف‬.
 Bay` al-dayn bi’l-`ayn/ ‫ﺑﯿﻊ اﻟﺪﯾﻦ‬
‫(ﺑﺎﻟﻌﯿﻦ‬Sale of an indeterminate good
with a determinate good). It is called
Bay` al-Salam/‫ ﺑﯿﻊ اﻟﺴﻠﻢ‬.

69
  Bay` al-`ayn bi’l-dayn/ ‫ﺑﯿﻊ اﻟﻌﯿﻦ‬
‫(ﺑﺎﻟﺪﯾﻦ‬Sale of a determinate good with
an indeterminate good). It is called
Bay` al-Mutlaq/‫ ﺑﯿﻊ اﻟﻤﻄﻠﻖ‬. Generally,
this kind of sale is prevalent. And at
the time of application of law a sale is
taken of this kind (unless it is alleged
and shown that it is of some other
classification).

With regard to Price (thaman/‫ )ﺛﻤﻦ‬a sale

is also classified into four kinds,
namely,-

(i) Where sale is made on a price

which includes cost price and
profit. It is called Murabahah/‫ﻣﺮاﺑﺤۃ‬.
(ii) Where sale is made at actual cost
price. It is called Tauliyah/‫ﺗﻮﻟﯿہ‬.

70
 (iii) Where sale is made at a price
lower than the actual cost price. It is
called Wad`iyyah/‫وﺿﻌﯿہ‬. And
(iv) Where sale is made on such cost
price on which the seller and buyer
mutually agree. It is called
Musawamah/‫ﻣﺴﺎوﻣہ‬.

A THING THAT DOES NOT EXIST

CANNOT BE SOLD

Where a seller sells a thing which is not

existing or there is apprehension that it
will not come into existence, such a thing
cannot be sold. For example: sale of a
pregnancy or sale of a milk which is in
the udder is not permissible, as may be
there is gas causing inflation in the

71
abdomen having no child in it and may
be the udder is empty. Similarly fruits
that have not yet become manifest cannot
be sold. Like wise the blood and the dead
cannot be sold as those are not mal/‫ﻣﺎل‬.
Likewise a Muslim cannot sell wine or
pig as those are not mal
mutaqawwam/ ‫ﻣﺎل ﻣﺘﻘﻮ ّم۔‬.

GRASS GROWN UP ON THE LAND

IS NOT OWNED BY ANY ONE

The grass that grows on the land is

owned by none. Even if the land belongs
to a person and the grass grows in it .
The reason is that the grass is not owned
by any one. In the same manner the
water of a canal, or well and the wood of
a jungle and the animal which are hunted
do not become owned till those are
possessed by a certain person.

72
SALE SHOULD NOT BE FOR A
TIME OR PERIOD FIXED

Where a sale is muwaqqat /‫( ﻣﻮﻗﺖ‬for a

certain period or time) it is invalid. For
example to say: I sold this horse to you
for such and such price for four days
only. This is invalid.

THE THING SOLD AND THE

PRICE PAID MUST BE CLEARLY
KNOWN

Where the thing or the price are

unknown it may create later on some
doubt and dispute will arise. Hence such
a sale is invalid. For example where a
persons says to another person: sold you
a goat from among this herd. This is
invalid.

73
Similarly if he says: I sold a certain thing
at normal price or on such price which
such and such person may tell. This is
invalid.

WHAT IS THE LEGAL EFFECT OF

VALID SALE?

Legal effect of sale is that the buyer

should become the owner of the thing
sold and the seller should become the
owner of the price. The consequence of
the sale is that it is obligatory upon the
seller to deliver the thing sold to the
buyer and it is obligatory upon the buyer
to pay the price of the thing sold to him.
This is possible when the sale is
Qat`i/‫ ﻗﻄﻌﯽ‬and not Mauquf/ ‫ﻣﻮﻗﻮف‬.
Where the sale is mauquf/ ‫ ﻣﻮﻗﻮف‬on the
grant of permission to sell by some other
person, the sale shall be established only

74
after the grant of permission by such
person.

OFFER AND ACCEPTANCE

According to Imam Quduri,-

The sale (al-bay`u/ ُ ‫ ا َﻟ ۡ)ﺒ َﯿ ۡ ﻊ‬takes place

(yan`aqidu/ ُ ‫ ﯾ َﻨ ۡ) ﻌ َ ﻘ ِﺪ‬by the offer (bil-
’Ijabi/‫ )ﺑﺎﻻﯾﺠﺎب‬and the acceptance (wa’l-
qubuli/ ِ ‫اﻟ ۡ )ﻘ ُﺒُﻮ ۡ ل‬when
َ‫و‬ (’iza/‫ ا)ِذ َا‬the both
were (kana/‫ )ﮐ َﺎﻧ َﺎ‬in the past tense (lafzi’l-
madi/ ۡ ‫) اﻟ ۡ ﻤ َ ﺎﺿ ِ ﯽ‬.ِ ‫ﻆ‬And
ۡ ‫ ﺑ ِﻠ َﻔ‬when (wa ’iza/‫و)َ ا ِذ َا‬
one of the contracting parties (ahadul-
muta`aqidayn/‫ )اﺣﺪ اﻟﻤﺘﻌﺎﻗﺪﯾﻦ‬made the offer
(aujaba/ َ ‫ ا) َو ۡﺟ َﺐ‬of the sale (al-bay`a/ َ ‫اﻟ) ۡ ﺒ َﯿ ۡﻊ‬
then the other (fa’l-akharu/ ُ ‫ﻓ َﺎﻵ) ۡ ﺧﺮ‬
[contracting party] has the option (bi’l-
Khayari/ ِ ‫ِﺎﻟ ۡ)ﺨ َ ﯿ َﺎر‬that‫ ﺑ‬if he might will (’in
sha’a / َ ‫ِن ۡ ﺷ َﺎء‬ ) he
‫ ا‬would accept (qabila/ َ ‫ﻗ)َﺒ ِﻞ‬
it in the same session (fi’lmajlisi/ ‫ﻓ ِﯽ‬
ِ ‫ﻤ )َﺠ ۡ ﻠ ِﺲ‬and
ۡ ‫( اﻟ‬wa/ َ ‫ )و‬if he willed (’in sha’a

75
/ َ ‫ِن)ۡ ﺷ َﺎء‬he
‫ ا‬would reject it (radda hu/ ٗ ‫)َ د ﱠه‬.‫ر‬
Thus If any one of the two stood up from
the session (fa ayyuhuma qama mina’l-
majlisi/ ِ ‫ ﻗ)َﺎم َ ﻣ ِﻦ َ اﻟ ۡ ﻤ َﺠ ۡ ﻠ ِﺲ‬before
‫ ﻓ َﺎ َﯾﱡﮭُﻤ َ ﺎ‬making
an acceptance (qabla’l-qubuli/ ِ ‫ﻗ َﺒ ۡ ﻞ َ ) اﻟ ۡ ﻘ ُﺒُﻮ ۡ ل‬
the offer shall stand cancelled (batala’l-
’ijabu/ ُ ‫َﻞ َ اﻷ ۡﯾ ۡ ِﺠ َ ﺎب‬ ). ‫ﺑ َﻄ‬Where offer and
acceptance are acquired (fa iza hasala’l-
ijabu wa’l-qubulu/ ُ ‫ذ َا ﺣ َ ﺼ َ ﻞ َ) اﻻ ۡ ِ ﯾ ۡ ﺠ َ ﺎب ُ و َ اﻟ ۡ ﻘ ُﺒُﻮ ۡ ل‬
the sale became binding (lazima’l-
bay`u/ ُ ‫ِم َ) اﻟ ۡ ﺒ َﯿ ۡ ﻊ‬and
‫ ﻟ َﺰ‬there is no option for
any on of them both (wa la khayara li
wahidim-minhuma/ ‫و َ ﻻ َ )ﺧ َ ﯿ َﺎر َ ﻟ ِﻮ َ اﺣ ِ ﺪ ٍ ﻣ ِﻨ ۡ ﮭُﻤ َ ﺎ‬
except on account of some defect or non-
examination (’illa min `aybin au `adami
ru’yatin/ ٍ ‫)ﻋ َﯿ ۡ ﺐ ٍ ا َو ۡ ﻋ َ ﺪ َم ِ ر ُؤ ۡ ﯾ َۃ‬.33ۡ ‫ا ِﻻ ﱠ ﻣ ِﻦ‬

33
Al-Subh al-Nuri Sharh Urdu Mukhtasar al-Quduri,
Muhammad Hanif Gangohi, Maktabah Shirkat-i-`Ilmiyyah,
Multan, p. 233.

76
Both these words (i.e. the offer and
acceptance) must be used in past tense
[That is : I sold. I bought]; or both the
words should be in the present tense
[That is: I sell. I buy]; or one word may
be in the past and the other in the present
[That is I sell. I purchased]. If the word
uttered by any of them is in future tense
there will be no sale. [That is: I will sell.
I will purchase].

Where a seller said: I sold this thing. The

buyer said: Yes. There will be no sale.
Where a buyer made an offer and the
seller in reply stated: Yes. The sale is
valid.
Where “yes” is said in response to an
interrogation, it is no sale. However, if
the buyer pays the price at that moment
as payment of such price is in fact an
acceptance. The sale stood established.

77
Where it is asked: Have you sold this
thing for this price and the seller said:
“Yes”, and the buyer paid the price. The
sale is established. 34

Where a person said: I exchanged my

horse with your horse and the other
person also said : I also did the same.
The Bay` stood established.
Where the seller said: This thing is for
you in lieu of a thousand rupees. The
buyer said: I accepted. The bay` stood
established.35

Where a person said to another person

this thing is yours for a thousand rupees
if you like it. The other person said: I
like it. The sale shall stand established.

34
Durr Mukhtar.
35
Fatawa `Alamgiri.

78
Where a person said to another person
this thing has become yours if it suits
you or you have intended to have it or
you have desired it. The other person
replied: It suited me or I have intended to
have it or I have desired it. By the
utterance of these words the sale shall
stand established. 36

A person said to another person: Take

these goods and make up your mind
today and if you liked them then these
are yours in lieu of a thousand rupees.
The other took away the things. The sale
stood established validly. 37

The seller said to another person: I sold

this (thing) to you. The said other person
began to eat that thing or if that thing

36
Fatawa `Alamgiri.
37
Fatawa Khaniyah.

79
was an animal he did ride over it or if it
was a garment he wore it, (in all these
circumstances) the sale stood
established. That is exercise of all such
controls tantamount to an acceptance of
the offer. In the same manner where a
person said to another person: Eat this
thing and in lieu of it a thousand rupees
shall become binding on you to pay me.
The said other person ate the said thing.
The sale became valid and its eating
became lawful.38

THE SESSION OF OFFER AND

ACCEPTANCE

The session in which an offer is made

but the acceptor is absent, the offer is
totally void. It does not depend upon his
acceptance on information received.
38
Fatawa `Alamgiri.

80
However, if the offer was sent in writing
by the person who made the offer then in
the session in which the writing reaches
him, the acceptor accepts such offer; a
valid sale shall stand established. If the
acceptor did not accept it in that very
session then he is not entitled to accept it
later on.
Likewise where the words of offer are
sent through some messenger, then the
session in which such messenger informs
of such words of offer to the accepter, he
can accept them in that session. The form
of such contract is that the seller said to
a person: I have sold this thing to such
and such certain person, you go to him
and inform him of it, if a person who is
present in that session accepts it on
behalf of the absent, the offer did not
become void. Rather this sale became
dependant upon the acceptance of the

81
absent person. If he had appointed a
certain person to convey the information
to the absent but the same was conveyed
to him by some other person and he
accepted it, the sale became valid.

WRITTEN OFFER AND

ACCEPTANCE

As an offer can be in writing similarly an

acceptance can be in writing. Thus where
a person sends his offer in writing to
another person and he accepts it in
writing , the sale shall stand established.
But this is necessary that the session in
which the written offer is received, in the
same session it is accepted in writing
otherwise the acceptance shall become
void. 39

3939
Durr Mukhtar; Radd al-Muhtar; Fatawa `Alamgiri.

82
OPTION OF ACCEPTANCE/‫ﺧﯿﺎر ﻗﺒﻮل‬

When one of the two contracting parties

made an offer in a session, then the other
party has the right to accept or reject
such offer in that very session. This right
is termed in Islamic jurisprudence as the
option of acceptance (Khayar qubul/ ‫ﺧﯿﺎر‬
‫)ﻗﺒﻮل‬. Kiyar Qabul is a right in which
inheritance is not applicable. It is not
hereditary right. If the person to whom
offer is made dies before acceptance his
or her heirs have no right to accept the
offer.40
The right of option to accept survives till
the end of the session in which it is
made.
Right of option to accept an offer
extinguishes when the session is
changed.
40
Fatawa `Alamgiri; Bahar-i-Shari`at.

83
It is also necessary that the maker of an
offer must be alive at the time of
acceptance. If after offer but before
acceptance the person who made the
offer died, the right to accept also
extinguished. The reason is that legally
the offer became void due to the death of
the offerer. When offer became void
what will be accepted. 41

Where one of the two contracting parties

stands up and leaves the session in which
the offer was made, or they engage
themselves in some other topic, the offer
becomes void.
Offer can be taken back or withdrawn or
recalled by the maker before its
acceptance. After its acceptance he has
no right to withdraw his offer. The
reason is that the moment an offer is
41
Fatawa `Alamgiri.

84
accepted an enforceable contract comes
into existence in the eye of law. It
becomes a binding contract. If recall is
allowed the right of the acceptor is
denied (which is not permissible). 42

WHEN SALE BECOMES BINDING?

When both the offer (Ijab/‫ )اﯾﺠﺎب‬and the

acceptance (qubul/‫ )ﻗﺒﻮل‬are completed
the sale is complete and becomes
binding. Now none of the parties has the
right to reject it without the consent of
the other party. However, if there is
some defect (`ayb/‫ )ﻋﯿﺐ‬in the thing sold
or the buyer has not made any inspection
(ru`yat/‫ )رؤﯾﺖ‬of the thing sold then he is
entitled (mustahaqq/‫ )ﻣﺴﺘﺤﻖ‬to the option
of defect (Khayar `Ayb/‫ )ﺧﯿﺎر ﻋﯿﺐ‬and

42
Hidayah, al-Marghinani,Burhanddin Farghani,

85
option of inspection (Khayar Ru’yat/ ‫ﺧﯿﺎر‬
‫)رؤﯾﺖ‬.43

Where a person purchased a load for a

consideration of one rupee and then said
to the seller, bring another load of the
same price and unload here. He went and
brought and unloaded there the same.
The sale of this second load also stood
established and the buyer cannot refuse
to accept it.44

Goods are ordered to be delivered by the

shopkeepers for consumption and
accounted for after those are consumed.
This is permissible. 45
For example: The news Agency sends or
delivers at home through its hawkers the
43
Hidayah, al-Marghinani,Burhanddin Farghani,
44
Fatawa `Alamgiri.
45
Durr Mukhtar.

86
newspaper daily. After the month is over,
a bill is received for payment as the price
of the total number of daily newspapers
sent by the News Agency. The owner of
the house pays the amount. This is valid.
The milkman and housekeeper agree that
the milkman will deliver a certain
quantity and kind of milk at certain fixed
rate at home to a housekeeper. The
milkman delivers the agreed to quantity
and quality of the kind of milk agreed to
by the parties daily by home delivery.
After the month is complete the milkman
submits the bill of a months quantity of
milk so delivered to the housekeeper and
he pays the amount. The contract of sale
is valid.

WHAT IS SALEABLE GOODS

(MABI`/‫)ﻣﺒﯿﻊ‬:

87
In a contract of sale a certain thing is to
be delivered and it is that very thing
which is to be delivered. It means the
subject matter of the sale is determined
(mu`ayyan/‫)ﻣ ُ ﻌ َ ﯿﱠﻦ‬. This determined subject
matter is called the goods sold
(mabi`/‫)ﻣﺒﯿﻊ‬.

WHAT IS PRICE (THAMAN/‫?) ﺛﻤﻦ‬

The thing which is not determined (ghayr
mu`ayyan/ ‫ )ﻏﯿﺮ ﻣ ُ ﻌ َ ﯿﱠﻦ‬is called Price
(thaman/‫)ﺛﻤﻦ‬.

Things are of three kinds:

1. That which is always Price
(thaman/‫ ;)ﺛﻤﻦ‬The example is rupee,
dollar, pound, yen, riyal. Coins are
also Price (thaman/‫ ﺛ)َﻤ َﻦ‬as they do not
become determined. However their
(thamaniyyat /‫ ﺛ)َﻤ َ ﻨ ِﯿﱠﺖ‬can become
void.

88
2. That which is always (mabi`/‫;)ﻣﺒﯿﻊ‬
The example is those things that have
a price (Dhawat al-Qim/ ِ ‫ات ُ اﻟ ۡ ﻘ ِﯿ ۡ ﻢ‬
) and
َ ‫ذ َو‬
those things that have counting
dissimilarity (`Adadi Mutafawat/ ‫ﻋﺪدی‬
‫)ﻣﺘﻔﺎوت‬. However, a bundle of cloth
when its quality is stated and a period
of limitation (mi`ad/‫ ﻣ)ِﯿ ۡ ﻌ َﺎد‬for its
delivery to the seller is fixed , this
can also become Price (thaman/‫)ﺛﻤﻦ‬.
In exchange of it any determined
thing can be purchased.
3. That which is sometimes Price
(thaman/‫ )ﺛﻤﻦ‬and some times goods
sold (mabi`/‫)ﻣﺒﯿﻊ‬. Such things are sold
by measurement of capacity
(Makil/‫)ﻣﮑﯿﻞ‬ and by weight
(Mauzun/‫ )ﻣﻮزون‬and by counting
similarity (`Adadi Mutaqarib/ ‫ﻋﺪدی‬
‫)ﻣﺘﻘﺎرب‬. If such things are mentioned
as against the Price (thaman/‫ )ﺛﻤﻦ‬then

89
 those are goods sold (mabi`/‫)ﺒ ِﯿ ۡ ﻊ‬.َ ‫ﻣ‬And
if as against them things like them are
mentioned i.e. sold by measure
(makil/‫)ﻣﮑﯿﻞ‬, sold by weight
(mauzun/‫)ﻣﻮزون‬, or sold by counting
similarity (`adadi mutaqarib/ ‫ﻋﺪدی‬
‫ )ﻣﺘﻘﺎرب‬, then if the things on both
sides are determined ones
(mu`ayyan/‫ )ﻣﻌﯿﱠﻦ‬then the sale shall be
valid and both things will be declared
saleable goods (mabi`/‫)ﻣﺒﯿﻊ‬.
But where one side goods are determined
(mu`ayyan/‫ )ﻣ ُ ﻌ َ ﯿﱠﻦ‬and other side goods are
not determined (ghayr mu`ayyan/‫)ﻏﯿﺮﻣﻌﯿﱠﻦ‬
but the quality of the undetermined
goods is described, i.e. it is of such and
such quality, then if determined is
declared saleable goods (mabi`/‫ )ﻣﺒﯿﻊ‬and
(ghayr mu`ayyan/‫ )ﻏﯿﺮﻣﻌﯿﱠﻦ‬is declared
Price (thaman/‫ )ﺛﻤﻦ‬the sale is valid..
However, to take possession of the

90
undetrmined before separation is
necessary.

Where an undetermined thing (ghayr

mu`ayyan/‫ )ﻏﯿﺮ ﻣﻌﯿﱠﻦ‬is declared the
saleable goods (mabi`/‫ )ﻣﺒﯿﻊ‬and the
determined thing (mu`ayyan/‫ )ﻣﻌﯿﱠﻦ‬is
declared as Price (thaman/‫)ﺛﻤﻦ‬, the sale
shall be invalid.

In such a situation the goods sold

(mabi`/‫ )ﻣﺒﯿﻊ‬and the Price (thaman/‫)ﺛﻤﻦ‬
are determined. And if the goods sold
(mabi`/‫ )ﻣﺒﯿﻊ‬and the Price (thaman/‫)ﺛﻤﻦ‬
both are undetermined then the sale is
invalid.

WHAT IS THE LEGAL EFFECT A

VALID SALE?

91
 A sale which is valid and fulfils all the
conditions of a valid sale brings the
following legal effect:

(i) Ownership of the goods sold which

belonged to the Seller is transferred
to the purchaser.
(ii) Seller becomes entitled to receive
the consideration of the goods sold.
In other words the seller shall
become the owner of the price paid
to him by the buyer in lieu of sale
of his goods.
(iii) Buyer can demand possession of
the goods sold to him by a valid
contract of sale when he delivers
the price of the goods and not
before.
(iv) All expenses of delivery shall be
the responsibility of the seller.

92
 (v) All expenses incurred in making the
payment of price to the seller shall
be the liability of the buyer.
(vi) Buyer shall have the right to
exercise option of annulment of
acceptance of goods offered for sale
on account of having found a defect
in it called Khayar al-`Ayb/ ‫ﺧﯿﺎر‬
‫اﻟﻌﯿﺐ‬, or option of inspection called
Khayar al-Ru’yat/‫ﺧﯿﺎر اﻟﺮؤﯾﺖ‬, option
of fraud called Kayar al-
Taghrir/‫ ﺧﯿﺎر اﻟﺘﻐﺮﯾﺮ‬.46
46
Al-Khayar/‫ اﻟﺨﯿﺎر‬means an option. It is the right to
demand the best of two things.
Khayar al-`Aqd/‫ ﺧﯿﺎراﻟﻌﻘﺪ‬means the right to maintain or
annul a Contract. With regard to its cause it is of various
kinds, namely:-
 Al-Khayar fi Ijazati Bay` al-Fuduliyy/ ‫اﻟﺨﯿﺎر ﻓﯽ اﺟﺎزة ﺑﯿﻊ‬
ّ ‫ اﻟﻔﻀﻮﻟﯽ‬: It means there is a right with the owner whose
goods have been sold by a person who was not his
duly appointed agent or attorney to give the
permission for the act done on his behalf without his
permission or to refuse to give such permission and
reject the sale made by an unauthorized person on his
behalf of the goods belonging to him.

93
 Khayar al-Istihqaq/‫ﺧﯿﺎراﻻﺳﺘﺤﻘﺎق‬: Its cause is that in the
goods sold there is also a right of ownership of a third
party, as for example it is a stolen property, or an
already sold property etc.
 Khayar al-Bulugh/‫ﺧﯿﺎر اﻟﺒﻠﻮغ‬: It is the right of a female
who is married during her minority. The moment she
attains puberty she has the right to maintain it or get it
annulled by making a petition before the Competent
Court of Law.
 Khayar Tafriq al-Sifati/‫ ﺧﯿﺎر ﺗﻔﺮﯾﻖ اﻟﺼﻔۃ‬: Its cause is
destruction of part of goods before taking possession
or description of its entitlement.
 Khayar al-Shart/ ‫ﺧﯿﺎر اﻟﺸﺮط‬: Its cause is that one of the
contracting parties stipulates or both of them that he
shall have the right of annulment or cancellation of the
Contract till a fixed period. This is called Stipulated
right of Cancellation. That is this right is a condition
or term or stipulation in the Contract of sale itself.
 It is also from among Khayar al-Shart to have Khayar
al-Naqd which means that the seller puts a condition
on the buyer that the buyer will bring the amount of
price on such and such fixed day. If he brings the
contract shall become established and binding
otherwise there is no Contract of sale between us.
 Khayar al-`Itaq/‫ﺧﯿﺎر اﻟﻌﺘﻖ‬: Where a female slave is
married and she has the option on her freedom to
maintain in tact that marriage or to annul it.
 Khayar `adam al-Taslim/‫ﺧﯿﺎر ﻋﺪم اﻟﺘﺴﻠﯿﻢ‬: Its cause is that
the goods is either on lease-holding or a pledge etc.

94
 Khayar al-`aqd/‫ﺧﯿﺎر اﻟﻌﻘﺪ‬: Where all contracting parties
or any one of them has the right (the option) to annul it
or to continue the contract.
 Khayar al-`Ayb/ ‫ﺧﯿﺎر اﻟﻌﯿﺐ‬: Its cause is the appearance
of an old defect in the goods sold which decreases its
price or obstructs the very purpose on which the buyer
has no information or notice at the time of purchase. It
is called Actio empti (F).
 Khayar al-Ghabn/‫ ﺧﯿﺎر اﻟﻐﺒﻦ‬: It cause is sale of a goods
at a high price than the assessment of the assessers
made concerning its value. This is an open or grave
deception (‫)ﻏﺒﻦ اﻟﻔﺎﺣﺶ‬.
 Khayar al-Taghrir/‫ ﺧﯿﺎر اﻟﺘﻐﺮﯾﺮ‬: It is caused by a word
or conduct of the seller in the matter of the goods sold
i.e. the seller speaks of the goods to make believe a
perfection in the goods while actually it is not so as for
example he tells that the goat sold gives empty of milk
while actually it is short of milk. In modern terms the
ingredients shown on the label are not actually of that
quality or quantity when put to laboratory test. Thus
the seller defrauded or cheated the buyer. This is not
permitted under Islamic law and is termed as
gharar/‫ ﻏﺮر‬or taghrir/‫( ﺗﻐﺮﯾﺮ‬deception, cheating, fraud)‫۔‬
 Khayar al-Ta`yin/‫ ﺧﯿﺎر اﻟﺘﻌﯿﯿﻦ‬: Where an option is
available to determine which of the two things he
would like to retain.
 Khayar al-Ru’yat /‫ﺧﯿﺎر اﻟﺮؤﯾۃ‬: Where a buyer purchases
a thing with having seen it and when he sees it or
inspects it he is with the option to maintain the sale
contract or to annul it.

95
WHAT THINGS ARE CONSIDERED
INCLUSIVE OF GOODS SOLD?

The following five things are considered

inclusive of goods sold:

 The things which are customarily

considered included in it.
 Khayar Kashf al-Hal/‫ﺧﯿﺎر ﮐﺸﻒ اﻟﺤﺎل‬: Where a person
buyes by a weight of a stone certain wheat while he
does not know its weight and when he knows its
weight he has the option to purchase by that weight or
cancel the sale.
 Khayaru fawat-i-wasfin marghubin fihi/ ٍ ‫ﺧ َ ﯿ َﺎر ُ ﻓ َﻮ َ ات ِ و َﺻ ۡ ﻒ‬
ِ ‫ ۡ ﻏ ُﻮب ٍ ﻓ ِﯿ ۡ ہ‬:‫َﺮ‬Where
‫ﻣ‬ a person purchases a horse on
account of such horse having a certain quality and
training but actually it is not. Such a person has the
option to annul the sale for non existence of the
quality in the goods sold which was desired by the
buyer and told to exist by the seller.
 Khayar al-Majlis/ ‫ﺧﯿﺎر اﻟﻤﺠﻠﺲ‬: Right of unilateral
repudiation of contract during session of sale.
[Mu`Jam Lughah al-fuqaha’ (Arabic English), Prof.
Dr. Muhammad Radas Qala`ji, Idarah al-Qur’an wa’l-
`Ulum al-Islamiyyah, Karachi, pp.201-203]

96
  The parts of the goods sold.
 The things which is separated from
the goods sold it would cause a defect
in it or there occurs an apprehension
of its becoming defective for want of
such thing.
 Those things which are adjoin to the
thing sold or which are covered by
the document of alienation of the
goods sold.
 All those things that are acquired
from the goods sold after completion
of the execution of the Contract of
Sale. For example the fruits of the
trees.

KINDS OF SALES:

1. Bay` Sahih /‫ ﺑﯿﻊ ﺻﺤﯿﺢ‬or Valid

Sale: A valid sale is that which is

97
perfect in all respect and there is
nodefect of any condition or any
essential element.The following sales
fall under the category of valid sales:
 Bay` Salam: This is called forward
buying. Price is paid in the Contract
session for the thing to be made and
delivered on the appointed date of
the agreed quantity and quality.
 Bay` Sarf : This is sale of money
with money, cash with cash or
Money exchanging.
 Bay` Muqayadah: This is Bartering.
 Bay` Istisna`: This is Contract of
manufacture.
 Bay` Nafidh: Operative;
 Bay` Mauquf. A sale which is
suspended for the permission of
other party.
 Bay` Mutlaq: Unconditional sale.

98
  Bay` Murabahah: Resale with a
stated profit.
 Bay` Tauliyah: Resale at Cost price.
 Bay` Wad`iyyah: Resale with a
loss, price reduction.
 Bay` Musawamah: Bargaining to
settle the price.

2. Bay` Ghayr Sahih / ‫ ﻏﯿﺮ ﺻﺤﯿﺢ‬or

Invalid sale is that sale i which there
is some deficiency which will be
either of some stipulations or an
essential element. In the above eleven
kinds of valid bay` if any of the
deficiency is found it will become an
invalid sale or a void sale as the facts
and circumstances will respective
show.

WHAT IS A BAY` AL-FASID?

99
A fasid Bay` is that sale the origin of
which is valid while the attribute is
defective.
According to Imam Shafi`i there is
difference between bay` batil or By`
Fasid. If there is deficiency in any
condition of sale that will be called bay’
fasid. When the buyer will take
possession of any thing he will become
owner of the land and payment of its
price to the seller will become binding
upon him.
B is ownerof a horse. A purchased that
horse from B in exchange of the wine
belonging to B. When A occupies the
horse, he shall be bound to pay the price
to B (the owner). When A will possess
the horse its ownership will stand
transferred to him. But this Bay` is Bay`
fasid as wine is unlawful in Islam. An
unlawful thing has no value in Islam and

100
a price must be having a value to become
the price of the thing sold. Thus there is
deficiency in the condition or stipulation.
If this defect is removed, i.e. instead of
wine a lawful thing is given as price , the
fasad will go off and the sale will
become valid. Fasad makes the Bay`
fasid and the removal of fasad makes the
Bay` Sahih (valid).

WHAT IS A SHART IN BAY`?

To make a bay`valid there are certain
preconditions. Which must be fulfilled.
If those conditions are not fulfilled the
bay` does not become valid.

WHAT IS A VOID (BATIL/‫) ﺑﺎطﻞ‬

SALE?

A void sale is that which is invalid.

There is defect in its essential elements

101
(arkan/‫)ارﮐﺎن‬. Essential elements are
those which are found within the thing
itself. The basic rule is that if among the
things none is such which the divinely
revealed Religion has declared a
valuable thing (mal/‫)ﻣﺎل‬, then such sale is
void. The example is blood, dead, flesh
of pig, an animal slaughtered in the name
besides Allah. It is not mal/‫ ﻣﺎل‬in Islam.
A void sale is no sale ab initio.
In a void sale the thing is not the
ownership. It does not belong to him and
if it is destroyed there is no penalty on
him.
A entered into a bargain with B in lieu of
flesh of dead or blood such sale is void.
Similarly sale of a flying bird, foetus in
the abdomen, and milk in the udder is a
void sale, which is void ab initio. The
reason is that its essential element is

102
defective. A sale in whose essential
element there is a defect is a void sale.

CANCELLATION OF BAY`

Bay` can be cancelled by mutual consent

of all parties.
Khayar Shart47, Khayar Ru’yat48, Khayar
`Ayb49 and Khayar al-Taghrir50 may be
exercised to cancel the Bay`.
47474747
In sale both the parties to a contract may add any
stipulation. For example: Both the buyer and the seller may
put a condition of three days or less than that period.
According to Imam Azam a condition of more tan three
days is not valid.
The authority on the subject is the text of the hadith
Habban bin `Amr Ansari (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬who was often
cheated in his business dealings and the Messenger of
Allah (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬said to him: You may take the
right to exercise your option within three days. It will be
permissible for you.[Nur al-Hidayah, Vol. 3, p. 6]
However the Sahibayn (Imam Abu Yusuf and Imam
Muhammad) are of the view that a condition as to period to
cancel the sale may be beyond three days.
Where a seller put the condition of three days to use option
of cancellation of sale of goods and the buyer had taken

103
possession of the goods though the goods were in the
ownership of the seller and such thing is lost or deteriorated
then buyer shall be liable to pay compensation equal to the
price of the goods.
Where a thing sold is in possession of the seller and buyer
got the right to exercise option of cancellation of the sale.
In such case the goods do not belong to the seller nor to the
buyer. If the buyer gets possession and the thing is lost or
deteriorated or spoiled, the buyer shall be liable to pay
compensation or price. But where the thing remains in the
possession of the seller, the ownership and possession both
are with the seller.
48
Option to see a thing which was purchased without
seeing. This right is of the buyer to return the thing or
maintain the sale on seeing the thing purchased. The right
exists even if sale and purchase were with mutual consent.
As the thing was not seen by the purchaser he has this right
to see the thing and thereafter he has the option to purchase
on the market price or refuse to purchase it. Where the
seller sells his thing without seeing it, he has no right to
cancel the sale.
49
Khayar al-`Ayb is the option given by Islamic Law to the
purchaser to exercise when he finds any defect in the thing
purchased. A defect is that the existence of which causes
reduction in market price. By the exercise of this right he
may annul the sale or get the compensation to the extent of
loss in price.
50
Where the defect in the goods sold is in the knowledge of
the Seller and he does not make the purchaser aware of it or
where the sample shown and the delivered thing are not of

104
WHATIS IQALAH?

Iqalah is reversal of sale on the price

paid and not more.
Iqalah cannot be of Talaq, Nikah and
`Itaq.

Where a person purchases three things

and stipulates that he will take any one of
them. This is valid. But if he did so about
four things it is incorrect as the Khayar
the same quality, it is called Khayar al-Taghrir. Buyer can
cancel the sale. He may also file a criminal case for
cheating.

105
al- Shart is valid for being uptil three
days and not beyond that period.51

3. Bay` Muqayadah/‫ﺑﯿﻊ ﻣﻘﺎﯾﻀہ‬

4. Bay` Sarf /‫ﺑﯿﻊ ﺻﺮف‬
5. Bay` Salam/
6. Bay` Istisna`/

KINDS OF BAY` WITH REGARD

TO THE RULE OF SALE:

1. Bay` Nafidh:
2. Bay` Maquf:
3. Bay` Fasid:
4. Bay` Batil.

51
Ahsan al-Masa’il, Muhammad Ahsan Siddiqi, Urdu Tr.
Kanz al-Daqa’iq,HM Sa’id & Co. Karachi, (n.d.) p. 220.

106
KINDS OF BAY` WITH REGARD
TO THE SALEABLE GOODS
(MABI`/‫)ﻣﺒﯿﻊ‬:

1. Bay` Muqayadah:
2. Bay` Sarf
3. Bay` Salam
4. Bay` Mutlaq.

KINDS OF BAY` WITH REGARD

TO THE THAMAN:

1. Bay` Murabahah:
2. Bay` Tauliyah:
3. Bay` Wadi`ah
4. Bay` Musawamah.

KINDS OF BAY` THAT HAVE

BECOME NON-EXISTENT:

1. Bay` Mulamasah:

107
 2. Bay` Hasat:
3. Bay` Munabadhah:

Thus a sale is either valid or invalid. In

valid sale is of two kinds, namely, void
or voidable. Void sale is that where there
is defect of essential element (rukn/‫)رﮐﻦ‬.
While voidable sale is that where there is
defect of condition (shart/‫)ﺷﺮط‬. Voidable
sales are:
 an aleanatory sale (Bay` al-
Mulamasah/‫)ﺑﯿﻊ اﻟﻤﻼﻣﺴۃ‬52,
 a sale by the throwing of pebble
towards the goods for sale and to
which it touches that becomes the

52
Sahih , Bukhari transmitted on the authority of Hadrat
Anas (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬that Messenger of Allah ( ‫ﺻﻠﯽ ﷲ‬
‫ )ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬said that Ba` al-Mulamasah and Bay` al-
Munabadhah are prohibited.

108
 goods sold at the price offered
(Bay` al-Hasat/‫) ﺑﯿﻊ اﻟﺤﺼﺎة‬53, and
 a sale by throwing a goods
towards the buyer without any
ascertainment of quantity or
quality (Bay` al-Munabadhah/ ‫ﺑﯿﻊ‬
‫)اﻟﻤﻨﺎﺑﺬة‬54.

These were the sales of the Period of

Ignorance (Pre-Islamic period). The
Messenger of Allah (‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬
prohibited such sales.55
Throughout Islamic law there is stress on
fairness and sound reasons. This is

53
Sahih , Bukhari, and Sahih , Muslim transmitted on the
authority of Hadrat Abu Hurayrah (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬that
the Messenger of Allah (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬prohibited the
sale by throwing stone towards the thing to be sold.
54
Ibid.
55
Sahih , Muslim transmitted on the authority of Hadrat
Abu Hurayrah (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬that the Messenger of
Allah (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬prohibited the sale by throwing
stone towards the thing to be sold

109
possible when there is certainty about the
quantity and quality. There should be no
commercial dishonesty of any kind.
There should be no concealment of the
true state of affairs and condition of a
thing sold or price paid. Options of
various kinds given by Islamic law are to
make the dealing just, fair, honest and
based on mutual agreement. It does not
mean that an unlawful (Haram/‫)ﺣﺮام‬
thing will become lawful by observing
these principles. It will remain unlawful
even if the dealing is just, fair, honest
and based on mutual agreement. The
lawfulness or unlawfulness of any thing
is under the Divine command. Its sale
and purchase is another phenomenon in
which also the lawfulness and
unlawfulness with reference to sale and
purchase is to be seen and observed.

110
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