Islamic Fiqh > Financial transactions > Gharar: forbidden uncertain sales > Forbidden sales, part 1
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Updated on 26 September 2026 at 7:12 PM
Prohibited sales form a major chapter of the fiqh of contracts: the Sharia forbids selling what has neither lawful value nor lawful use, or whose sale opens a path to harm. The jurists divided these sales: most are void (batil), others are merely defective (fasid), and a narrow category is valid though unlawful. The following are nineteen classic questions of prohibited sales, with the exact positions of the four schools, their proofs and their takhrij.
A legal indication may prove the validity of a sale that was prohibited after the prohibited thing had already occurred: in that case the sale is not void and becomes a specific exception to the rule, such as najash (bid-rigging), the sale of the watered animal (al-musarra) and meeting the caravans outside the market (talqi al-rukban).
The Shafi'is say: sales that the prohibition came upon may be judged void, and this is the general case, as required by the prohibition, such as selling meat for a live animal or selling another's property. But they may not be judged void when the prohibition does not target the sale itself but something else, such as selling present goods for deferred payment or meeting the caravans (Rawdat al-Talibin, 3/59; Asna al-Matalib, 2/30). The Hanbalis likewise divided prohibited sales into void sales and valid sales despite the sin.
The mayta (carrion) is any animal whose life has left its body without lawful slaughter (dhabh). Included are the animal slaughtered by a Zoroastrian or an apostate, the one slaughtered with a bone or the like, and the slaughter of an inedible animal. The rule is therefore: the mayta is that whose life has ended without religious slaughter, excepting fish and locusts.
The people of knowledge are unanimous: the sale of the mayta is invalid, and likewise the animal slaughtered by the apostate, the polytheist or the Zoroastrian. Ibn al-Mundhir transmitted this consensus (al-Ijma', 469, 471; al-Majmu', 9/217): the scholars are unanimous on the prohibition of selling the mayta, wine, swine and its purchase. Al-Nawawi writes (Sharh Muslim, 11/8): as for the mayta, wine and swine, the Muslims are unanimous on the prohibition of selling each of them. Ibn Battal adds (Sharh al-Bukhari, 6/345): this unanimity is due to Allah's prohibition of the mayta, in the following verse.
«Prohibited to you is the carrion»
Surah al-Ma'idah, 3
The proof of the unlawfulness of selling the mayta is the hadith of Jabir ibn Abdallah, who heard the Messenger of Allah say, in the year of the Conquest, while he was in Mecca:
«Allah and His Messenger have forbidden the sale of wine, carrion, swine and idols.» It was said: «Messenger of Allah, what about the fats of carrion? Ships are caulked with them, hides are greased with them, and people light lamps with them.» He said: «No, it is unlawful.» Then the Messenger of Allah said: «May Allah fight the Jews: when Allah forbade their fats, they melted them, sold them, and consumed their price.»Narrated by al-Bukhari (2121) and Muslim (1581)
The cause of the prohibition of selling the mayta and blood: for the Hanafis, the absence of monetary value; for the majority, the impurity of the substance itself. Ibn al-Qayyim (Zad al-Ma'ad, 5/746) shows that these words comprise three prohibited categories: drinks that corrupt the intellects, foods that corrupt the temperaments by feeding them vile nourishment, and substances that corrupt the religions by calling to fitna and polytheism (shirk). The prohibition thus protects the intellects through the first category, the hearts through the second (since the effect of nourishment resembles that of the one nourished), and the religions through the third.
Excepted are the mayta of fish, the locust, and what life does not render lawful (the two bloods): their sale is permitted by consensus, per the hadith of Ibn Umar from the Prophet:
«Two dead things and two bloods have been made lawful for us: as for the two dead things, they are fish and locusts; as for the two bloods, they are the liver and the spleen.»Authentic hadith, narrated by Ahmad (5723) and Ibn Majah (3314)
The majority of jurists hold: the skin of the mayta may not be sold before tanning, because it is impure. They then differ over the tanned skin. The Hanafis, the Shafi'is in the later position, Malik and Ahmad in a narration transmitted from them: the sale is permitted after tanning, per the Prophet's words:
«When the skin is tanned, it becomes pure.»Narrated by Muslim (366)
The Prophet passed by a dead sheep that a slave girl of Maymuna had received as charity and said: «Why did you not benefit from its skin?» They said: it is carrion. He said: «Only its eating has been forbidden», and in another version: «Why did you not take its skin, tan it, and benefit from it?» (al-Bukhari, 5531; Muslim, 363). The argument of those who permit: tanning returns the skin to the ruling of the living animal, whose sale was lawful; the verse belongs to a specific context; and the license granted to the compelled eater concerns a meaning within him, not the mayta, while the permission of the tan concerns a meaning within the skin.
The Malikis, the Hanbalis in the well-known position of their school (tanning does not purify) and al-Shafi'i in the earlier (qadim) position: the sale of the skin of the mayta is forbidden even when tanned. The Shafi'is established it from the generality of the verse «Prohibited to you is the carrion» (Surah al-Ma'idah, 3), from the fact that permission to benefit from the mayta does not entail permission to sell it (as with the compelled eater), and from the fact that the effect of tanning is purification, while purification is not the cause of a sale's validity, like the umm al-walad (cf. Bada'i' al-Sana'i', 5/141; al-Hidaya, 3/42; al-Majmu'; Zad al-Ma'ad, 5/749; Fath al-Bari, 4/425-426; Nihayat al-Muhtaj). The issue is treated in detail in the books of purification, in the chapters on impure substances.
The jurists differ over benefiting from the mayta in two opinions. The first, that of the majority (Hanafis, Malikis, Hanbalis): no benefit whatsoever is permitted from the mayta, of any kind. Al-Jassas (Ahkam al-Qur'an, 1/132) transmits from his companions: it is not permitted even to feed it to dogs and birds of prey, for that is a form of benefiting from it; Allah forbade the mayta with an absolute prohibition attached to its substance, carrying a firm status of blocking; nothing of it is permitted except what a proof that must be accepted specifies.
Ibn Qudama transmits from Ahmad (al-Mughni, 9/341): I dislike feeding carrion to one's trained dog and trained bird of prey, for that is harming the carrion; if the dog eats of it, I see no harm for its owner. Malik had two positions, as transmitted by al-Qurtubi (Tafsir al-Qurtubi, 2/218): one permits benefiting from it, by the hadith of the Prophet passing by Maymuna's sheep: «Why did you not take its skin?»; the other renders its entirety unlawful: nothing of it is used, nor of impurities generally, not even watering crops or animals with impure water, nor feeding impurities to beasts, nor giving carrion to dogs and wild beasts, even if they eat it without being prevented.
The second opinion, that of the Shafi'is: all benefit from the mayta is permitted, and only its sale is forbidden. Al-Nawawi (Sharh Muslim, 11/6) comments on the words «No, it is unlawful»: their meaning is «do not sell it», for its sale is unlawful; the pronoun «it» refers to the sale, not to benefiting; this is the correct position with al-Shafi'i and his companions: it is permitted to use the fat of the mayta for caulking ships, for lighting, and for everything that is neither eating nor contact with the human body; 'Ata' ibn Abi Rabah and Muhammad ibn Jarir al-Tabari said the same. The majority, however, say: no benefit from it is permitted at all, due to the generality of the prohibition of benefiting from the mayta, except what was specified: the tanned skin.
Ibn al-Qayyim (Zad al-Ma'ad, 5/749-753) resolves it: this is a place of disagreement, because people differed in understanding his intent. His master (Ibn Taymiyya) says the pronoun refers to the sale: when the Prophet informed them that Allah had forbidden selling the mayta, they alleged that its fats had such and such benefits, meaning: does that justify permitting its sale? He answered: «No, it is unlawful.» Ibn al-Qayyim adds: they were, in effect, seeking to except the fats from the mayta, as al-'Abbas sought to except idhkhir from the prohibition of the plants of the Haram.
Other companions of Ahmad say: the prohibition refers to the acts asked about, and he said «it is unlawful» (masculine) and did not say «she is», intending the whole of what was mentioned; some wordings of the hadith carry «she is unlawful» (feminine), and the pronoun, on either reading, is a proof against the lawfulness of the acts asked about. He supports it with the hadith of Abu Hurayra about the rodent that fell into rendered fat:
«If it is solid, throw it away along with what surrounds it; if it is liquid, do not come near it.»Narrated by Ahmad (7591), Abu Dawud (3842) and al-Nasa'i (4260); al-Albani judged it anomalous against Bukhari's version (Silsilat al-Ahadith al-Da'ifa, 1532)
Using an impure substance for lighting is a benefit free of that corruption and free of intimate contact with it: it is pure benefit, without harm; and what is like this the Sharia does not forbid, for the Sharia only forbids pure or dominant corruptions, their paths and their causes. He concludes: the prohibition of selling the mayta does not entail the prohibition of benefiting from it beyond what Allah and His Messenger forbade of it, such as lighting fires and feeding falcons and fledglings; Malik indeed affirmed the permissibility of using impure oil outside the mosques and of making soap from it. The door of benefit is wider than the door of sale: not everything whose sale is forbidden has its benefit forbidden, and no necessary connection exists between the two.
The people of knowledge are unanimous: it is unlawful for a Muslim to sell wine and consume its price, by the word of Allah:
«Wine, gambling, stone altars and divining arrows are but a defilement, the work of Satan; so avoid it, that you may succeed.»
Surah al-Ma'idah, 90
Allah named wine a defilement (rijs), which entails the impurity of the substance and the absence of monetary value, as with the mayta, blood and the flesh of swine; He commanded avoiding it, which requires that it never be permitted for a Muslim to approach it for the sake of gain (al-Mabsut of Sarakhsi, 24/24). Then comes the hadith of Jabir ibn Abdallah (al-Bukhari, 2121; Muslim, 1581), cited above, on forbidding the sale of wine and the Jews' consumption of its price after melting their fats.
Ibn Wa'la al-Misri asked Abdallah ibn Abbas about what is pressed from grapes. He reports:
«A man offered the Messenger of Allah a vessel of wine. He said to him: "Do you not know that Allah has forbidden it?" The man said no; a man whispered to the Prophet beside him, who asked: "What did you charge him?" He said: I ordered him to sell it. The Messenger of Allah said: "The One who forbade drinking it forbade selling it", and the man opened the two waterskins until their contents were gone.»Narrated by Malik in al-Muwatta (1543), al-Shafi'i in al-Umm (6/179) and Ahmad in al-Musnad (2041)
Ibn Abd al-Barr (al-Tirmidhi, 4/141-142) comments: the Prophet established the prohibition on behalf of Allah with no disagreement; the prohibition of wine came in Surah al-Ma'idah with the wording of prohibition, and this verse abrogated every earlier wording permitting it, explicit or by indication, in al-Baqara, al-Nisa and al-Nahl; the community is unanimous that grape wine is unlawful in itself, little of it or much. He also says: the words «The One who forbade drinking it forbade selling it» amount to the consensus of all Muslims that selling wine and trading in it are unlawful. Ibn al-Mundhir (narrated by al-Bukhari, 4268): they are unanimous that the sale of wine is not permitted; al-Qurtubi (Tafsir al-Qurtubi, 6/289): the Muslims are unanimous on the prohibition of selling wine and blood.
From Aisha: when the verses at the end of Surah al-Baqara were revealed, the Prophet recited them in the mosque and forbade trade in wine (narrated in al-Ijma', 470). Ibn al-Qayyim (Ighathat al-Lahfan, 1/364) specifies: trade in wine is forbidden even if the seller buys it only from a disbeliever for whom drinking it is lawful, for trade is a path to acquiring and drinking it; this is why, when the verses forbidding riba were revealed, the Messenger of Allah recited them to the people and joined to them the prohibition of trade in wine: riba is a path to the corruption of wealth, wine a path to the corruption of intellects, and he combined the prohibition of trading in both.
Ibn Battal (Sharh Sahih al-Bukhari, 6/345-346) transmits from al-Tabari the objection: what is the meaning of «May Allah curse the Jews: when Allah forbade their fats, they melted them, sold them, and consumed their price», when Allah forbade eating many things whose prices are not forbidden, such as domestic donkeys and birds of prey (eagles, fledglings)? Answer: the difference, despite their apparent resemblance, is clear: Allah made wine and swine impure substances; their status is that they may be neither sold nor bought nor their price consumed, the status of the other impurities. From this follows the criterion: every impure substance has its sale, purchase and price forbidden; every pure thing whose eating is forbidden has its sale, purchase and use lawful in whatever Allah has not forbidden to be used.
The jurists differ regarding the people of the covenant: may they sell wine, or not, like the Muslims? Two positions. The first is the Hanafi school: the sale is lawful among them. Al-Jassas (Ahkam al-Qur'an, 4/89): the people of the covenant are treated in sales, inheritances and the rest of contracts according to the rules of Islam, like the Muslims, except the sale of wine and swine, which is lawful between them, for these are counted as wealth for them; everything else follows our rules. The same is stated by al-Sarakhsi (al-Mabsut, 10/84), and al-Kasani establishes it in Bada'i' al-Sana'i' (5/192): every sale valid among Muslims is valid among the people of the covenant, and whatever is void or defective among them likewise, except wine and swine.
Al-Kasani adds: the people of the covenant are not prevented from selling wine and swine, for their use is lawful to them by the Sharia, like vinegar and mutton for us; they are therefore wealth in their right, and their sale is permitted. It is transmitted from Umar ibn al-Khattab that he wrote to his tax collectors in Syria: «let them sell it and take the tenth of its price» (narrated by Abu Ubayd in al-Amwal, 1/62, with a sound chain); had the sale of wine not been lawful for them, he would not have charged them with overseeing that sale. Per other Hanafis, the prohibition of wine and swine applies to the Muslim and the disbeliever, but they are not prevented from selling: they do not believe in that prohibition and draw their wealth from it, and we have been commanded to leave them to themselves and their religion.
If a dhimmi sells wine or swine to a dhimmi, then one of the two embraces Islam before taking possession, the sale is rescinded: with Islam, selling and buying become forbidden, so the delivery too, for it resembles the formation of the contract, or is a formation in one respect, and it is attached to the forbidden matters as a precaution (al-Bada'i', 5/143; al-Mabsut, 11/102). Al-Zayla'i (Tabyin al-Haqa'iq, 4/126) summarizes: the dhimmi is like the Muslim in every sale other than wine and swine; in wine and swine, their contract is like the Muslim's contract on pressed grape juice or mutton, and whatever is permitted therein is permitted, for these are precious wealth in their right, attached to their counterparts among our wealth; we have indeed been commanded to leave them and their beliefs, and they paid the jizya only for that; Umar said regarding them: «let them sell it and take the tenth of its price», and the Companions abound in this direction, with no known opposition, until it became a consensus.
The second position, that of the majority of jurists (Malikis, Shafi'is, Hanbalis): the sale of wine is forbidden even among the people of the covenant. Al-Shafi'i writes in al-Umm (4/211): all the sales valid among Muslims are valid among them; when they are concluded and consumed, we do not annul them; if two of them sell wine to each other without taking possession, we annul the sale; if they take possession, we do not reverse it, for it has passed. Al-Nawawi adds: we have established that the sale of wine is void, whether the seller is a Muslim or a dhimmi, whether two dhimmis sell it to each other, or whether the Muslim appoints a dhimmi as his agent to buy it for him: all of it is void without disagreement among us; the position of Abu Hanifa (validating the agency) is corrupt and contrary to the authentic hadiths forbidding the sale of wine (al-Majmu', 9/214). The dispute in fact rests on a well-known principle of legal theory: whether the disbeliever is addressed by the branches of the Sharia.
A corollary question: the sale of wine and the rest of transactions over wine are forbidden to the people of the covenant as they are to the Muslim, according to our school (the Shafi'i school); Abu Hanifa says it is not forbidden to them; al-Muzawi explains that the issue rests on a well-known principle of usul: the disbeliever is addressed by the branches of the Sharia according to us, not according to them (al-Majmu', 9/214). The texts of the Malikis and Hanbalis likewise indicate the invalidity of the sale of wine among the people of the covenant, as among the Muslims (al-Jami' li-Masa'il al-Mudawwana, 13/1004; Sharh Mukhtasar Khalil, 3/7).
Ibn Qudama (al-Mughni, 5/173): what is forbidden to be sold, not on account of its own impurity, has no value due, like the mayta; for what is not guaranteed against the Muslim is not guaranteed against the dhimmi, as with the apostate; and this substance is not valued, so it is not compensated. Wine is forbidden upon the Muslim and the dhimmi alike, and the address of the prohibitions reaches both: what is established regarding one is established regarding the other.
If the wine or swine belonging to a Muslim is destroyed, there is no compensation, by agreement, whether the destroyer is a Muslim or a dhimmi, for these are not valued wealth among the Muslims. If a Muslim destroys them for a dhimmi: for the Shafi'is and Hanbalis, there is no compensation either, for what is not guaranteed against the Muslim is not guaranteed against another (Mughni al-Muhtaj, 2/285; Asna al-Matalib, 4/212; al-Mughni with al-Sharh al-Kabir, 7/111, 113). The Hanafis explicitly affirm compensation toward the people of the covenant, for it is valued wealth in their right; the Malikis say the same, if the dhimmi does not display the wine and swine (al-Bada'i', 5/16, 113; al-Zurqani ala Khalil, 3/146; al-Jami' of Ibn Yunus, 13/1004).
Ibn Qudama: whoever destroys wine or swine belonging to a dhimmi owes nothing, and he is prevented from targeting what they do not display. In sum: no compensation is due for wine or swine, whether the destroyer is a Muslim or a dhimmi, against a Muslim or against a dhimmi; Ahmad established this in the narration of Abu al-Harith concerning the man who pours out an intoxicant belonging to a Muslim or a dhimmi: no liability on him, and al-Shafi'i says the same. Abu Hanifa and Malik say: compensation is due if the destruction is against a dhimmi. Abu Hanifa specifies: against a Muslim, its value; against a dhimmi, its equivalent (al-mithl), for the covenant, in protecting a substance, gives it value, like human life; the dhimmi's wine is protected, the proof being that the Muslim is prevented from destroying it, so he must pay its value; and it is wealth to them from which they draw their wealth, as shown by Umar's report: his governor wrote to him that the people of the covenant were traveling with wine, and Umar replied: «let them sell it, and take from them a tenth of its price».
The contrary arguments: the sahih hadith of Jabir on the prohibition of selling wine, carrion, swine and idols; what is forbidden to be sold, not for its own impurity, has no value due, like the mayta; what is not guaranteed against the Muslim is not guaranteed against the dhimmi; and they are not accepted as protected: as soon as they display it, pouring it out becomes lawful. The women and children of the people of war are indeed protected without being valued. As for Umar's hadith, it is interpreted as his aim of not targeting them: the command to take a tenth of the prices applies when they sell and exchange the wine among themselves, for then we uphold ownership and do not destroy it; and the naming of it as «prices» is metaphorical, as Allah named the price of Yusuf a price: «and they sold him for a low price» (Surah Yusuf, 20).
The meaning of al-Khiraqi's words («he is prevented from targeting what they do not display») is that everything they hold lawful in their religion, without harm to the Muslims (their disbelief, their wine drinking, their crosses, their forbidden marriages), may not be targeted so long as they do not display it: we committed ourselves to honoring their covenant in our land. What they display, however, must be denounced: displayed wine may be poured out, a displayed cross or tanbur may be broken, displayed disbelief is punished, and they are prevented from displaying what is forbidden to the Muslims (al-Mughni with al-Sharh al-Kabir, 7/111-113).
It is likewise agreed that pressed grape juice (usira) usurped from a Muslim is not poured out when it was protected (muhtarama), that is, pressed not for wine but for vinegar (ta'khlil): it is returned to the Muslim, who may keep it until it becomes vinegar. When compensation is owed by a Muslim, it is paid by value (qima) according to the Hanafis and Malikis, not by equivalent, for the Muslim is prevented from transferring ownership of wine in either direction, as that would honor it. If it is owed by a dhimmi to a dhimmi, the Hanafis specify: it is paid by equivalent (cf. Bada'i' al-Sana'i'; Hashiyat Ibn Abidin, 5/292; Tabyin al-Haqa'iq, 5/234; al-Bahr al-Ra'iq, 1/142; Nihayat al-Muhtaj, 5/168; Hashiyat al-Qalyubi, 3/30; Rawdat al-Talibin, 4/109; al-Mughni with al-Sharh al-Kabir, 7/111-118; al-Sharh al-Mumti', 4/405).
Al-Bukhari opened in his Sahih a chapter: «Should vessels containing wine be broken, or waterskins pierced?» Al-Hafiz Ibn Hajar (Fath al-Bari, 5/122): the ruling was not spelled out, for what is relied upon is the detail: if the vessels can be washed, become pure again and be reused, destroying them is not permitted; otherwise it is.
The people of knowledge are unanimous on the prohibition of selling the pig, by the word of Allah:
«Forbidden to you are carrion, blood and the flesh of swine»
Surah al-Ma'idah, 3
Then comes the hadith of Jabir ibn Abdallah, in the year of the Conquest: «Allah and His Messenger have forbidden the sale of wine, carrion, swine and idols», with the sequel about the fats of the mayta and the Jews (al-Bukhari, 2121; Muslim, 1581). Ibn al-Mundhir (al-Ijma', 471, 472): they are unanimous on the prohibition of everything Allah forbade of carrion, blood and swine, and on the unlawfulness of selling and buying the pig; in al-Awsat (2/280): the people of knowledge are unanimous on the prohibition of swine, forbidden by the Book, the Sunna and the agreement of the community.
Ibn Battal (Sharh Sahih al-Bukhari, 6/344): the scholars are unanimous on the unlawfulness of selling and buying the pig, and on killing every harmful pest, whose harm is less than the pig's, such as the pests the Prophet permitted the pilgrim in ihram to kill: the pig has the first claim to this duty, given the extent of its harm. 'Issa ibn Maryam will kill it upon his descent; its killing is therefore obligatory, and this is proof that it is forbidden in the Sharia of 'Issa, and that the Christians who render it lawful in their religion contradict it.
Among the conditions of the object of the contract, whether price or merchandise, are purity and lawful use. The basis of a sale's lawfulness is benefit: selling what has no lawful use prevents true satisfaction and becomes consuming wealth unjustly, which is forbidden; the pig's benefits, even if it has some, are all unlawful, and what is legally non-existent counts as physically non-existent. It follows that its fat, its flesh and all its parts are forbidden; al-Nawawi (Sharh Muslim, 13/96): the verse mentions the flesh because it is the greatest object of concern, and the Muslims are unanimous on the prohibition of its fat, its blood and all its parts.
Ibn al-Qayyim (Zad al-Ma'ad, 5/761): the prohibition of selling the pig covers its entirety and all its parts, apparent and internal. Observe how the verse mentions the flesh in the dietary prohibition, signaling the prohibition of eating, of which flesh is the greatest part; conversely, for game, he did not say «the flesh of game» but forbade game itself, covering its eating and its killing; and here, in the prohibition of sale, he mentioned the pig in its entirety without restricting the prohibition to its flesh, so as to cover its sale alive or dead.
Ibn Kathir (Tafsir Ibn Kathir, 2/9-10), explaining the verse: it means the domestic and wild pig, and «the flesh» generalizes all its parts, down to the fat; there is no need for the subtleties of those who argue from «for it is a defilement or wickedness» (Surah al-An'am, 145) by attaching the pronoun to the pig alone: that is linguistically far-fetched, the pronoun returning only to the principal element, not the annexed one; the most apparent is that the flesh generalizes all the parts, as understood from the Arabic language and constant usage. In Muslim's Sahih, Burayda ibn al-Khasib transmits: «Whoever plays nardashir (an ancient board game) is like one who dips his hand in the flesh of the pig and its blood» (Muslim, 2260): if such is the aversion at mere touch, what then of the firm threat against eating it and living off it?
The Hanafis detail the status of the sale of the pig: it is void if sold for dirhams or dinars, defective if sold for a commodity, per their distinction between voidness and defectiveness. The reason: the Sharia commanded despising the pig and not honoring it; buying it with dirhams or dinars honors it, for the money is not the object of the contract, being only a means of acquisition, the object being the pig: hence the voidness of that sale and the loss of valuation it entails. Sold for a commodity, such as a garment, the reality of sale exists (an exchange of wealth for wealth), the pig counting as wealth in certain circumstances, as with the People of the Book; but the garment was preferred as the thing sold, by the judgment of rational people requiring that the honor go to the garment, the object intended by the contract, not the pig: the naming of the pig in the contract counts toward acquiring the garment, not toward the pig itself. The contract is therefore defective through the corrupted named price, and it is the value of the garment that is owed, without that of the pig (Bada'i' al-Sana'i', 5/305; Majma' al-Anhur, 3/79).
The jurists differ over the sale of the dog: is it permitted absolutely, trained or untrained, whether for hunting, guarding or otherwise? Several positions. The first is that of the Hanafis: the sale of the dog is permitted, trained or untrained, as well as the trained cheetah (fahd) and wild beasts, for it is an animal actually benefited from (guarding, hunting) in a lawful way, hence a wealth and an object of sale, like the falcon and the hawk. The hadith of prohibition may be understood as belonging to the beginnings of Islam: they were accustomed to keeping dogs, the command was given to kill them and their sale forbidden, as a strong deterrent from that habit, or it is interpreted accordingly to reconcile the proofs.
Al-Sarakhsi (al-Mabsut, 11/234-236) transmits from Ibrahim al-Nakha'i: no harm in the price of a hunting dog, and it is narrated that the Prophet permitted that price, and that is what we follow: the sale of a trained dog is permitted. Our proof is the license narrated from Ibrahim, which came after the prohibition, showing the abrogation of what had been forbidden: they were accustomed to keeping dogs, which harmed guests and strangers; keeping them was therefore forbidden, and it weighed on them; they were ordered to kill the dogs and their sale forbidden to uproot the habit, then the license came concerning the price of useful dogs: the hunting dog, the ploughing dog and the livestock dog. In the hadith of Abdallah ibn Umar, the Prophet forbade the sale of the dog except the hunting dog, the ploughing dog and the livestock dog; and it is narrated that he ruled 40 dirhams for a hunting dog, a measure of food for the ploughing dog, and a sheep for the livestock dog. 'Uthman imposed on a man who had destroyed a woman's dog a fine of 20 camels, in a hadith of well-known story.
Once it is established that the dog is valued wealth, beneficial in a lawful way, its sale is permitted like other wealth: its benefit is lawful in voluntary use, it may be transferred gratuitously during life by gift and after death by bequest, hence also for compensation. This proves it is not impure in substance: the benefit of what is impure is lawful neither in voluntary use (like wine), nor by gift or bequest. The correct position of the school: trained and untrained have the same ruling as long as it accepts training; it is even stated in the Nawadir: if he sells a puppy, the sale is valid, for it accepts training. The recalcitrant dog ('aqur) that accepts no training is not sold, being a harmful, useless substance, hence not valued wealth, like the wolf; the lion likewise: if it accepts training and hunting, its sale is permitted, otherwise not; the cheetah and the hawk always accept training, so their sales are permitted.
Abu Yusuf answers the hadith «the Prophet forbade the sale of the dog and the cat» (Muslim, 1569) by the hadith of the Prophet rinsing the vessel for the cat so it could drink, which is famous, and by the hadith of Urwa from Aisha: the Prophet rinsed the vessel for the cat to drink from it and then perform ablution. This proves it is not impure, as the hadith states: «it is not impure, it is one of those who go around you»; its benefit is therefore lawful without necessity, and everything with this quality is valued wealth that may be sold; the prohibition, if established, is understood as belonging to the beginnings of Islam (al-Mabsut, 11/234, 236; cf. al-Bada'i', 6/558; al-Ikhtiyar, 2/11; al-Jawhara al-Nayra, 3/72, 154; Hashiyat Ibn Abidin, 7/105; Ahkam al-Qur'an of al-Jassas, 3/308).
The second position: the sale of the dog is void, its price unlawful, and no value is due for its destruction, trained or not, puppy or adult, useful or not: this is the view of the Shafi'is and Hanbalis, per Abu Mas'ud: the Prophet forbade the price of the dog, the dowry of the prostitute and the gift to the soothsayer.
The Prophet forbade the price of the dog, the dowry of the prostitute and the payment given to the soothsayer.Narrated by al-Bukhari (2237) and Muslim (1567)
The sale of the dog is thus never valid, even if trained: had it been valued wealth, that command would not have been given; and it is an animal whose vessel must be washed when touched by its saliva, so its price and its value are forbidden like the pig. Rule: everything whose sale is not permitted has no value due for its destruction, and everything whose sale is permitted has a value due for its destruction (al-Hawi al-Kabir, 5/275; al-Wasit, 3/399-400; Rawdat al-Talibin, 3/14; al-Majmu', 9/214-216; al-Mughni, 4/171; Kashshaf al-Qina', 3/174; al-Rawd al-Murbi', 1/539; Zad al-Ma'ad, 5/767).
The Malikis, for their part, agree that the dog whose keeping is forbidden may not be sold; they differ over the sale of the dog lawful to keep in five opinions (seven are counted): absolute prohibition, the well-known position of the school; absolute permission, both transmitted from Malik in the Mudawwana; Sahnun says: «I sell it and argue with its price»; Ibn al-Qasim transmits the disapproval (karaha) of its sale; from Ibn al-Qasim as well: buying is permitted, selling not; from Malik: the sale is permitted in inheritance, debt and spoils, disliked at the outset; the first is the well-known position.
The basis of permission is the narrated hadith: «he forbade the price of the dog, except the hunting dog, the field dog or the livestock dog»; the dog is also a hunting raptor like the hawk; an animal acquired by seizure, hence acquirable by sale like game; an animal acquirable by bequest like other animals; and everything beneficial in a lawful way has its purchase and sale permitted, and its value due upon the one who kills it, for he destroyed his brother's benefit. But the chain of this hadith is weak: al-Tirmidhi (1281) and al-Bayhaqi (6/6) narrate it from Abu Hurayra with only the hunting dog, and al-Tirmidhi notes its weakness; al-Zayla'i (Nasb al-Raya, 4/53) and Ibn Hajar (al-Diraya, 2/161) did not find this full wording; al-Nawawi (Sharh Muslim, 10/233) concludes that all these hadiths, including the fines of 'Uthman (20 camels) and Amr ibn al-As, are weak by the agreement of the hadith masters. The Malikis add: on either view (permission or prohibition), whoever kills another's hunting, field or livestock dog owes its value, for it is a substance lawful to use, an animal for which a bequest is valid like the horse and the mule, and a hunting beast like the hawk (al-Tirmidhi, 23/27; al-Istidhkar, 6/430; Mawahib al-Jalil, 6/71; al-Taj wa al-Iklil, 3/280; Hashiyat al-Dasuqi, 4/16).
The majority of jurists of the four schools and others hold: the sale of the cat is permitted; the hadith of prohibition is interpreted as meaning the cat brings no profit, or as a discouraging prohibition (tanzih) rather than a forbidding one (tahrim), the cat being a lowly thing. Jabir reports that the Prophet forbade the price of the dog and the cat, and in another version the price of the cat.
The Prophet forbade the price of the dog and the cat.Narrated by Muslim (1569), al-Tirmidhi (1279) and Abu Dawud (3479)
The Prophet forbade the price of the cat.Authentic hadith, narrated by Abu Dawud (3480)
Al-Tahawi (Sharh Mushkil al-Athar, 12/84): we know of no disagreement among the people of knowledge concerning the price of the cat: it is not unlawful, but it is a lowly thing. Ibn Rushd (Bidayat al-Mujtahid, 2/95): the prohibition of the cat's price is established, but the majority permits it, for the cat is pure in substance and lawful in benefit. Ibn Qudama (al-Mughni, 4/175): al-Khiraqi says its sale is permitted, as did Ibn Abbas, al-Hasan, Ibn Sirin, al-Hakam, Hammad, al-Thawri, Malik, al-Shafi'i, Ishaq and the people of opinion. Ahmad disliked its price, as did Abu Hurayra, Tawus, Mujahid and Jabir ibn Zayd; this is the choice of Abu Bakr (and the choice of Ibn al-Qayyim), per Jabir asked about the price of the cat: the Prophet discouraged it; Abu Dawud narrates that he forbade it; al-Tirmidhi says: hasan hadith, but with instability in its chain.
Ibn al-Qayyim (Zad al-Ma'ad, 5/773) rules for the prohibition based on the strength of the explicit authentic hadith narrated by Jabir, who issued a fatwa on it with no known opponent among the Companions (transmitted by Qasim ibn Asbagh via Muhammad ibn Waddah, Ibn al-Mubarak and Hammad ibn Salama from Abu al-Zubayr), as Ibn Hazm notes; Abu Hurayra issued the same fatwa, as did Tawus, Mujahid, Jabir ibn Zayd and all the literalists (zahir), one of the two narrations from Ahmad, and the choice of Abu Bakr ibn Abd al-Aziz. Al-Bayhaqi transmits those who interpret the hadith (the cat's impurity later lifted by his words «the cat is not impure», or an unowned wild cat), interpretations that carry weakness; following the apparent meaning of the Sunna is preferable.
Al-Nawawi (Sharh Muslim, 10/233-234): the prohibition of the cat's price is interpreted as lack of benefit or as discouragement, until giving, lending and generosity toward it become the custom, which is the general case; if it is beneficial and sold, the sale is valid and its price lawful: this is our school and that of all the scholars, except what Ibn al-Mundhir transmits from Abu Hurayra, Tawus, Mujahid and Jabir ibn Zayd (prohibition). They argued by the hadith, and the majority answer that it is interpreted as we have said: that is the relied-upon answer. Al-Khattabi and Ibn Abd al-Barr declared the hadith weak: no, it is sahih, narrated by Muslim and others; and Ibn Abd al-Barr's error (that only Hammad ibn Salama narrated it from Abu al-Zubayr) is clear: Ma'qil ibn Ubayd Allah also narrates it from Abu al-Zubayr, both reliable, and Abu al-Zubayr himself is reliable. Al-Baghawi (Sharh al-Sunna, 8/24): the majority permitted it, including Ibn Abbas, al-Hasan, Ibn Sirin, al-Hakam, Hammad, Malik, al-Thawri, the people of opinion, al-Shafi'i, Ahmad and Ishaq; some interpreted the prohibition for the wild cat that cannot be mastered.
The people of knowledge are unanimous: the sale of blood is forbidden and its price unlawful, by the word of Allah «Forbidden to you are carrion and blood» (Surah al-Ma'idah, 3) and «unless it be carrion, or blood poured out» (Surah al-An'am, 145). Abu Juhayfa reports:
The Messenger of Allah forbade the price of blood and the price of the dog.Narrated by al-Bukhari (2123)
Ibn Abd al-Barr (al-Tirmidhi, 4/144): all the scholars agree on the prohibition of selling blood. Ibn Hajar (Fath al-Bari, 4/427): the meaning of «the price of blood» was disputed; some saw in it the fee of cupping; others take the text literally: the prohibition of selling blood like the mayta and the pig, unlawful by consensus, both selling blood and consuming its price. Al-Bayhaqi (al-Sunan al-Kubra, 10/7) transmits from Abu Sulayman al-Khattabi: blood is forbidden by consensus. Ibn al-Arabi the Maliki (Ahkam al-Qur'an, 1/79): the scholars agree that blood is unlawful and impure, neither eaten nor used; Allah mentioned it here absolutely, and in Surah al-An'am restricted to blood poured out (masfuh); the scholars attached the absolute to the restricted by consensus. Al-Qurtubi (al-Jami' li-Ahkam al-Qur'an, 1/615) says the same; al-Kasani (Bada'i' al-Sana'i', 5/61): consensus was formed on its prohibition, that is, of blood.
Ibn Hajar al-Haytami (al-Zawajir, 1/423) adds: the cause of blood's prohibition is also its impurity: people used to fill the intestines or the entrails with blood, roast them and serve them to guests, and Allah forbade it to them; the scholars agree on its prohibition and impurity. What remains in the veins and flesh is excepted, for it leaves with the poured-out blood of the second, restrictive verse; the liver and spleen are also excepted by the authentic hadith making them come out with the poured blood, so there is no real exception; some transmit from the majority that all blood, even unpoured, is forbidden. Abu Hanifa's position permitting unpoured blood is rejected, and it is not as he claimed. Al-Nawawi (al-Majmu', 9/97): the liver and spleen are lawful to eat without disagreement, per the preceding authentic hadith: «Two dead things and two bloods have been made lawful for us: as for the two dead things, they are fish and locusts; as for the two bloods, they are the liver and the spleen» (Ahmad, 5723; Ibn Majah, 3314).
Ibn al-Athir (al-Nihaya, 5/150) defines: the wathan is every made figure from the earth's minerals, wood or stones, in the image of a human being, made and erected to be worshipped; the sanam is the figure without a body; some did not distinguish the two terms and used both for both meanings; the wathan is also applied to what is not a figure, as in the hadith of 'Adi ibn Hatim, who came to the Prophet with a gold cross around his neck: «Throw away this wathan of yours». Ibn Manzur the Azhari (Lisan al-Arab, 13/443) transmits from Shimr: the original idols of the Arabs were every statue of wood, stone, gold, silver or copper, erected and worshipped; the Christians erected the cross, like a statue, which they venerate and worship; hence the poet al-A'sha called it a wathan in his verse: «the infidels circle its doors as the Christians circle the house of the idol».
The people of science agreed on the unlawfulness of selling idols of every type, shape and figure, per the hadith of Jabir ibn Abdallah, in the year of the Conquest: «Allah and His Messenger have forbidden the sale of wine, carrion, swine and idols» (al-Bukhari, 2121; Muslim, 1581). Ibn Battal (Sharh Sahih al-Bukhari, 6/360): the community is unanimous that selling the mayta and idols is not permitted, for benefiting from them is not lawful, and placing a price on them is wasting wealth, and the Prophet forbade wasting wealth. Ibn al-Mundhir, cited by Ibn Battal (6/607): idols mean figures taken from clay and wood, and everything people adopt that has no benefit except forbidden amusement; none of it may be sold, except idols of gold, silver, iron and lead once changed from their form into vessels or pieces: then their sale and purchase become permitted again.
Al-Baghawi (Sharh al-Sunna, 8/28): the prohibition of selling idols is a proof of the prohibition of selling every figure made of wood, iron, gold, silver and the like, and of selling all instruments of amusement and falsehood, such as the tanbur, the flute and all instruments: when the figures are effaced and the instruments of amusement changed from their state, the sale of their materials and elements becomes permitted, whether silver, iron, wood or other. Ibn al-Qayyim (Zad al-Ma'ad, 5/671-672): the prohibition of selling idols establishes the prohibition of selling every instrument made for polytheism, of whatever form and kind: an idol, a statue or a cross, likewise books containing polytheism and the worship of other than Allah; all of it must be removed and destroyed, for its sale is a path to acquiring and adopting it, hence even more forbidden than everything else; the Prophet, after the prohibition of selling idols, which is greater in prohibition and sin and further removed from Islam than selling wine, the mayta and the pig, moved on to what is graver still.
Ibn Taymiyya (Majmu' al-Fatawa, 22/141): the cross may not be made for pay or without pay, nor sold as a cross, just as idols may not be sold or made. Zakariyya al-Ansari (Asna al-Matalib, 2/10): instruments of amusement (flute, tanbur, horn) admit no valid sale, even if of gold or silver: no lawful use is drawn from them, and in their state nothing is intended by them but disobedience; the Prophet forbade the sale of idols per the report of the two shaykhs (al-Bukhari and Muslim).
Here 'udhra designates manure, the residue of animals other than man, called sirgin. The jurists differ over the permissibility of its sale. The Hanafis: the sale of sirgin and street mud (ba'r) is permitted, for its use is absolutely lawful (fertilizing land to increase crops), making it wealth; the cities practiced it through past ages without denunciation, otherwise all or some would have condemned it; and whatever may be lawfully used without necessity has its sale permitted like other wealth. But the sale of pure 'udhra does not conclude, no use of it being lawful at all: it becomes wealth only when mixed with soil, the soil predominant; its sale is then permitted, its use being permitted (al-Bada'i', 6/562; al-Ikhtiyar, 2/11; al-Jawhara al-Nayra, 3/155; al-Hidaya, 4/91; al-Bahr al-Ra'iq, 5/280).
The Shafi'is: the sale of 'udhra and sirgin (manure of edible animals and others) is forbidden and its price unlawful, for it is an impure substance, like the mayta; and per the hadith of Ibn Abbas:
«Allah cursed the Jews: He forbade them the fats, so they sold them and consumed their prices; when Allah forbids a people a thing, He forbids them its price.»Authentic hadith, narrated by Ahmad (2964), Abu Dawud (3488) and Ibn Hibban (4938)
Manure, impure in substance, is therefore not sold, like 'udhra. The Shafi'is answer the Hanafis: what they cite is not a consensus, for consensus is the agreement of the people of knowledge, and it has not been found; it is the ignorant and the rabble who do it, and that cannot be a proof in the religion of Islam (al-Umm, 6/240; al-Hawi al-Kabir, 5/383; al-Wasit, 3/397; al-Majmu', 9/218).
The Hanbalis judge the sale of 'udhra invalid, and likewise impure manure; pure manure, however, is validly sold, such as pigeon droppings and the dung of edible livestock (al-Mughni, 4/174; Kashshaf al-Qina', 3/179; Sharh Muntaha al-Iradat, 3/128; al-Insaf, 4/280). Among the Malikis there are four opinions on the sale of 'udhra:
On the sale of manure, Ibn Arafa cites three views: prohibition, from Ibn al-Qasim, by analogy with Malik's prohibition of selling 'udhra; permission, another view from Ibn al-Qasim; permission out of necessity, the view of al-Ashhab. The practice of the Malikis is the permissibility of selling manure, not 'udhra, out of necessity, as al-Dasuqi and others state. Al-Hattab (Mawahib al-Jalil, 6/61-62) specifies: the view of prohibition governs the basis of the school (the prohibition of selling impurities), the view of permission answers necessity, and whoever says disapproval sees the two commands conflicting in him, taking a price for it not being noble conduct; the other view holds that the cause of permission is only necessity, which must be real.
Earnest money ('urban, also 'urbun) consists, in a sale, of buying or arranging to buy goods by paying the seller part of the price, on condition that, if the buyer takes the goods, the sum paid is counted from the price, and that, if he does not take them, he leaves the earnest money with the seller. Earnest money also enters into hire, for there is no difference among things of benefit: like paying dirhams to a craftsman to make a shoe, a ring or weave a garment, on condition that, if his work is approved, the sum is from the price, otherwise it remains with the one who received it (al-Muwatta, 2/609; al-Istidhkar, 6/263-265; al-Kafi, 1/366; al-Majmu', 9/317; al-Mughni, 4/160; Bidayat al-Mujtahid, 2/122; Kashshaf al-Qina', 3/225). The scholars divided the ruling of this sale into three opinions.
The first opinion, that of the majority of jurists (Hanafis, Malikis, Shafi'is, and Ahmad in the narration chosen by Abu al-Khattab): the earnest money sale is invalid, per the hadith of Amr ibn Shu'ayb, from his father, from his grandfather: the Messenger of Allah forbade the sale with earnest money (narrated by Malik in al-Muwatta, 2257, Abu Dawud, 3502, and Ibn Majah, 2192; weak hadith). The earnest money is returned to its owner, for it is consuming people's wealth without right; the sale is rescinded: if the goods perished, their value is owed, with the earnest money deducted, as the Malikis say. Two corrupt clauses are mixed in it: the clause of gratuity (the sum is a gift if the buyer renounces) and the clause of return if the buyer is unsatisfied. The seller has moreover been granted something without compensation, which is invalid as if it were granted to a third party. And it resembles the unknown option: he obtained the right of return of the goods with no term mentioned, as if he said: I hold the option, whenever I wish I return the goods along with a dirham.
Al-Shawkani (Nayl al-Awtar, 5/251): the hadith of the chapter indicates the prohibition of the earnest money sale, and that is the view of the majority; Ahmad diverged by permitting it, and it is transmitted from Umar and his son. The hadith of Zayd ibn Aslam points to it, with the criticism noted; the safer course is the view of the majority, for the hadith of Amr ibn Shu'ayb came by paths that strengthen one another, and it contains preventive blocking (hazar), more probable than permission, as established in usul. The cause of the prohibition: two corrupt clauses, that what was paid be gratuitous if the buyer renounces the goods, and that of return to the seller if the buyer is not satisfied with the sale. If a buyer purchases and gives earnest money on condition that, if satisfied, he counts it from the price, and, if not, he returns the goods and takes back his earnest money, most of the scholars see no harm in it; but it is no longer permitted for him to rescind the contract afterwards without the seller's consent.
The Shafi'is specify: if the buyer says this clause is in the contract itself, the sale is void; if he said it before the contract, without uttering it at the moment of contracting, the sale is valid, for the clause affecting the sale is, for the Shafi'is, that which accompanies it (al-Majmu', 9/317; Mughni al-Muhtaj, 2/479). Ibn Abd al-Barr, after citing Malik's view (al-Tirmidhi, 24/178-179): on this view of Malik agree the jurists of the towns of the Hijaz and Iraq, including al-Shafi'i, al-Thawri, Abu Hanifa, al-Awza'i and al-Layth: it is a sale of gambling, gharar and risk, a consuming of wealth without compensation or gift, hence invalid; the earnest money sale is abrogated in their view, whether it occurs before or after taking possession; the goods are returned to the seller if they exist, otherwise their value on the day of taking is owed, and in every case the earnest money is returned, in hire as in sale. A lawful reading is moreover possible, the one Malik and the jurists with him interpreted: paying earnest money then deducting it from the price if the sale is completed: on this there is no disagreement, from Malik or anyone else.
Ibn Abd al-Barr adds in al-Istidhkar (6/265): if the invalid earnest money sale occurred, it is rescinded, the goods returned to the seller and the price returned to the buyer; if they perished, the buyer owes their value as it stood, and he takes back his price: the view of Malik, his companions and the rest of the jurists. Al-Nawawi (al-Majmu', 9/317): our school judges the sale void if the clause is in the contract itself; Ibn al-Mundhir transmits this view from Ibn Abbas, al-Hasan, Malik and Abu Hanifa, which resembles al-Shafi'i's; we received its permission from Ibn Umar and Ibn Sirin; and the account of Nafi' ibn Abd al-Harith: he bought from Safwan ibn Umayya a house in Mecca for 4000, on condition that, if Umar approved, the sale stood, and that otherwise Safwan would receive 400. This hadith was presented to Ahmad ibn Hanbal, who said: «what could I say? this is Umar.» Al-Khattabi summarizes: people differed over the permissibility of this sale; Malik and al-Shafi'i invalidated it on account of the hadith, the corrupt clause, the gharar and the consuming of wealth without right, as did the people of opinion; its permission comes from Umar and Ibn Umar, and Ahmad inclined to it.
The second opinion, that of the Hanbalis in the school: this sale is valid, the clause too, and the sum paid remains with the seller if the sale or hire is not completed, whether a time was specified or not. Basis: the account of Nafi' ibn Abd al-Harith, who bought from Safwan ibn Umayya a house for the prison of Mecca for 4000 dirhams: if Umar approved, the sale was his; otherwise Safwan would receive 400 (narrated by Abd al-Razzaq in his Musannaf, 23201; al-Bukhari mentioned it suspended in his Sahih, 2/853). Artham asked Ahmad: do you adopt this view? He said: «what could I say? this is Umar», and he weakened the hadith of prohibition (al-Mughni, 4/160). Zayd ibn Aslam reports that the Prophet reinstated earnest money in the sale (narrated by Abd al-Razzaq, 23195, sahih mursal).
The third opinion, a view among the Hanbalis: the earnest money sale is valid if the two contracting parties bound this sale to a specific term: «until a month from now»; if that term passes without purchase, or if they do not fix one, the condition is invalid from the start, for the seller or hirer does not know how long to wait, and unlimited waiting entails sufficient harm (Matalib Uli al-Nuha, 3/78). The Hanbalis add: if someone pays a seller a dirham before the contract, saying: «do not sell these goods to another, and if I do not buy them from you, this dirham or its like is yours», then buys them afterwards by a fresh contract, counting the dirham from the price, it is valid, for the sale is free of the corrupting clause; if he does not buy the goods in this form, the seller does not deserve the dirham, for the owner of the goods, were he to take it, would take it without compensation, and he may forgo it; compensation for mere waiting is not lawful, and if it were, it could be deducted from the price at purchase (al-Mughni, 4/161; Matalib Uli al-Nuha, 3/79).
Debt (dayn) is a juridical wealth established in liability by sale, loan or other; or what is established in liability over wealth by a cause requiring its establishment. The jurists varied in their definitions, but they converge on a single reality: debt designates wealth deferred in liabilities, such as the price of a sale, the consideration of a loan, the dowry after or before consummation of the marriage, the wage for a benefit, the indemnity for a wound, the fine for a destruction, the compensation of a khul' divorce, or the debt agreed for delivery. Selling debt is thus exchanging wealth deferred in liabilities for something else. This sale is made either by the one bearing the debt, or by a third party; and in both cases the price is either immediate cash or deferred.
The sale of debt for a deferred debt is the sale called kali' for kali', that is, debt for debt: it is a sale forbidden by the Sharia, for the Prophet forbade the sale of kali' for kali' (weak hadith, narrated by al-Daraqutni, 319; but Ibn Arafa says the imams' favorable reception of this hadith dispenses with seeking its chain, as with «no bequest to an heir»). It is the sale of what is in liability for a deferred price, by the one who bears it, or where possession was not taken before the parties separated, or where it is made the capital of a salam. Its form, described by Abu Ubayd (cited in al-Misbah al-Munir, 2/540): a man delivers dirhams for food at a term; at the term, the one owing the food says: I have no food, but sell it back to me for another term: that is a deferred thing turned into a deferred thing; had he taken the food and then sold it, to himself or another, it would not be kali' for kali'.
The scholars are unanimous on the non-permissibility of selling debt for a deferred debt, whether the sale is made by the debtor or by someone else. Example of the sale to the debtor: saying «I buy from you a mudd of wheat for a dinar, both payments to be settled in a month», or buying something at a term then, at the term, finding nothing with which to settle and asking: «sell this back to me for another term with an addition»: the seller sells without their exchanging possession: this is unlawful riba, applying the rule «lengthen my term and I increase your amount». Selling the debt for something else, however, is lawful: selling a debt of 1000 for goods, such as a prayer rug, or for a sum the debtor will pay: the sale is valid, for it is in substance a settlement (sulh).
Example of the sale to a third party: saying «I sell you the twenty mudds of wheat I hold with so-and-so, to be paid to me in a month», or for goods present: the sale is not valid, for inability to deliver the goods. Ibn Qudama transmits (al-Mughni, 4/51): Ibn al-Mundhir says the people of knowledge are unanimous that selling debt for debt is not permitted; Ahmad says it is a consensus. Ibn Taymiyya (Nazariyyat al-'Aqd, p. 235): Ahmad says no authentic hadith has been narrated on this, but it is a consensus; it is like lending something deferred at a term for something deferred: that is what is forbidden by consensus. Al-Nawawi (al-Majmu', 9/386): «deferred for deferred» is not permitted, as when one says: «sell me a garment in my liability, with such qualities, for a dinar deferred to such a time», and the other accepts: it is corrupt without disagreement. Ibn al-Qayyim (I'lam al-Muwaqqi'in, 2/8): the prohibition concerns kali' for kali', kali' being the deferred thing not yet taken, as lending within a thing of liability both being deferred: this is not permitted, by unanimous agreement. Al-Suyuti (Jawahir al-Uqud, 1/62): they agreed that the sale of kali' for kali', that is, debt for debt, is not permitted. Ibn Juzayy (al-Qawanin al-Fiqhiyya, 1/191): debt is not sold for debt, such as selling a debt owed by one man for another, deferred; likewise the cancellation of a debt for a debt, as when the debtor pays with fruit to be harvested or a house to dwell in, because of the deferred taking.
The majority of jurists nevertheless permit selling the debt to the debtor himself, or gifting the debt to the debtor, for what prevents the validity of selling debt for debt is inability to deliver, and here delivery is unnecessary: what is in the debtor's liability is already delivered to him. Example: the creditor sells to the debtor the debt he holds against him for another debt of a different kind: the sold debt falls away and the replacement becomes owed, for it is in substance a lawful settlement. The hadith of Ibn Umar supports it: «I came to the Prophet and said: I sell camels at al-Baqi', I sell for dinars and take dirhams, and I sell for dirhams and take dinars»; he said:
«No harm in taking at the day's price so long as you have not separated and something remains between you two.»Narrated by Abu Dawud (3354), al-Tirmidhi (1242), al-Nasa'i (3354) and Ibn Majah (2262); weak hadith
This sale between dinars and dirhams is a sale of debt for a commodity by the one bearing the debt, for «I sell for dinars» means a debt, since he had not taken them, to exchange them for dirhams he would take; the sale to a third party remains void with the majority. Al-Kasani (Bada'i' al-Sana'i', 5/148): the sale of debt by one other than the debtor does not conclude, for debt is either juridical wealth in liability, or an act of transferring and delivering wealth, and all of that is not within the seller's power to deliver; conditioning delivery on the debtor is also invalid, for it is conditioning delivery on one other than the seller, a corrupt clause corrupting the sale; the sale by the debtor is permitted, for the impediment (delivery) disappears.
The Malikis divide the sale of kali' for kali' into three categories. The first: the cancellation (fasakh) of a debt in liability for a deferred thing of another kind or greater: forbidden, as 10 dirhams owed cancelled for a dinar or a garment with deferred taking, or for 11 dirhams deferred; deferring without increase, or while reducing part, is permitted, provided the cancelled debt is in liability, even if it is a determinate body (real property or otherwise) with deferred taking, or the benefits of a determinate thing (riding an animal, an slave's service, dwelling in a specific house); the benefits of a non-determinate thing are not permitted (having a book copied against one's debt is not valid, but copying without condition and being paid afterwards is lawful, for it is a lawful compensation, not a deferred cancellation). The second: selling the debt for a debt to someone other than the debtor, such as selling the debt one holds against one's debtor for a debt in the liability of a third party: this is impossible, even if both debts are immediate, for no hawala transfer is possible; but selling it for an immediate debt, a determinate body with deferred taking, or determinate benefits is not prevented. The third: initiating a debt for a debt, such as salam whose capital is deferred beyond three days: forbidden, for each party occupies the other's liability with a debt.
On the sale of debt for cash, the Malikis lay down eight conditions of validity:
The Shafi'is: if ownership of the debts is established (fine for destruction, consideration of a loan), their sale by the debtor before taking is permitted, for his ownership is firm, like the sale of goods after taking. Their sale by someone other than the debtor: two views. The first permits it, and it is the relied-upon view, for what may be sold by the debtor may be sold by another, like the deposit; it is apparent that the seller can deliver it without impediment or denial; on condition that the buyer of the debt takes it from the debtor and the seller takes the price in the session: if they separate before either takes, the contract is void. The second forbids it, and it is the more apparent view: the seller cannot deliver it, for the debtor may prevent or deny it, and it is a gharar without need: hence not permitted. If the debt is not established but agreed for delivery (musallam fih), its sale is forbidden: Ibn Abbas was asked about a man who sold fine garments at a term, did not find them, and proposed taking for each fine garment two coarse ones: he disapproved and said: «take rather fodder or sheep at the principal»; for ownership in the musallam fih is not established: it may become impossible and the sale rescinded, like selling goods before taking. If the debt is the price of a sale: two views; in the book al-Sarf its sale before taking is permitted, per the hadith of Ibn Umar (the one on dinars and dirhams cited above), and because rescission by perishing is not feared; al-Muzani, in his great compendium, forbids it, for ownership is not firm there (rescission possible through perishing or defect) (al-Muhadhdhab, 1/262-263; al-Majmu', 9/259-261; Mughni al-Muhtaj, 2/536-537).
The Hanbalis in the school: the sale of an established debt, whether arising from goods, a loan, a dowry after consummation, a wage whose benefit has been fully enjoyed, an indemnity for a wound or the value of a destruction, is permitted to the one who bears it, on condition that the compensation be taken in the session; this applies if the debt is of what is not sold deferred, or of a body described in liability whose compensation's taking in the session was stipulated; otherwise, for what does not require taking possession, like saying «I sell you the barley in your liability for a hundred dirhams, or for this slave or this garment», taking the compensation in the session is not a condition of validity. The sale of an established debt to one other than its bearer is not permitted: this is the correct position of the school, just as gifting a debt to a third party is not valid, for the gift requires a determinate body, absent here; whereas the sale of a non-established debt is valid: rent of real property before the term, a dowry before consummation, a debt agreed for delivery before taking. A narration from Ahmad validates the sale of an established debt in another's liability to one other than its bearer; Ibn Taymiyya chose this view: «the sale of debt in liability, from the creditor or another, is permitted, with no difference between salam debt and any other; it is a narration from Ahmad» (al-Fatawa al-Kubra, 4/476; cf. al-Insaf, 5/110; al-Mughni, 4/95; al-Mughni, 4/150).
Ibn Rajab al-Hanbali (al-Qawa'id al-Fiqhiyya, p. 92-93) treats the sale of sakk (written debts) before taking: if the debt is in money (gold or silver) and sold for cash, its sale is not permitted without disagreement, for it is a deferred exchange; if sold for goods with taking in the session, there are two narrations: the first forbids it (Ahmad, in the narration of Ibn Mansur: it is gharar; Abu Talib transmits his disapproval: the sakk may or may not come out), the second permits it, distinguishing the sakk (a man's acknowledged debt) from the 'ata' (a treasury stipend, an absent thing whose arrival is unknown); it must not be resold before taking possession. The whole amounts to the permissibility of selling debt to one other than the creditor, as he established.
Selling meat for an animal is done either within the same kind (the meat of a sheep for a live sheep), or across different kinds (a live sheep for camel or cow meat). The scholars took several positions. The first is that of Abu Hanifa and Abu Yusuf: the sale of an edible animal for meat of its own kind is permitted with specification, the kind being one: part for part, by estimation, with compensation, after hand-to-hand exchange; for one has sold a weighed thing for an unweighed thing, like selling a sword for iron, the animal not being habitually weighed and its weight not being knowable by the scale. Selling one for the other deferred is not permitted, for the deferred cannot be controlled.
Muhammad (al-Shaybani) adds: if it is of its own kind, the sale is not permitted unless the detached meat exceeds the meat contained in the animal, so that the meat answers the meat and the surplus meat answers the rest (the sagat): the skin, the stomach, the intestines and the spleen, which bear no name of meat. If the sheep is slaughtered but not skinned and bought with sheep meat, the sale is permitted, in their view all together, only in the mode of consideration (wajh al-i'tibar): the detached meat must be greater, «unskinned» meaning not separated from the sagat. Buying a live sheep for a slaughtered sheep is permitted by consensus; with Muhammad it is a sale of meat for meat, the surplus meat of one answering the sagat of the other, without riba. Different kinds (cow meat for sheep and the like): permitted by agreement, whatever the quantity, without regard to more and less (Bada'i' al-Sana'i', 5/189; al-Mabsut, 12/181; al-Jawhara al-Nayra, 3/128-129; al-Ikhtiyar, 2/39; Tabyin al-Haqa'iq, 4/91).
The second position is that of the majority of scholars (Malikis, Shafi'is, Hanbalis): selling meat for an animal of the same kind is forbidden, agreed among the three schools (each differing internally over what the same kind is), for it is selling the known (the meat) for the unknown (the animal), and ribawi wealth sold for its origin, hence forbidden, like the olive for oil. If the kind differs: the Malikis, the Shafi'is in the apparent view and the Hanbalis in the school say: selling outside the kind is permitted, for it is ribawi wealth sold for what is neither its origin nor its kind, like selling it for cash; but its deferred sale is forbidden. The Shafi'is in the apparent view and the Hanbalis in a second view say: the sale is void, of the same kind or not; selling meat and what resembles it (fat, liver, heart, kidney, spleen, tail fat) for an animal of the same kind is forbidden (sheep meat for a sheep), likewise for a different edible kind (cow meat for a sheep, fish meat for a sheep, sheep meat for a camel) or a non-edible one (sheep meat for a donkey).
The proofs of the majority: the hadith of Sumra from the Prophet:
«The Prophet forbade selling the sheep for its meat.»Narrated by al-Hakim in al-Mustadrak (2251), who authenticated it; al-Bukhari argued by al-Hasan's report from Sumra; the hadith has a mursal witness in Malik's Muwatta and a version in al-Bayhaqi's al-Kubra (10349), with a sahih chain
And the hadith of Sa'id ibn al-Musayyib from the Prophet:
«The Prophet forbade the sale of meat for the animal.»Narrated by Malik in al-Muwatta (2/655), Abu Dawud in his Mawqulat, al-Daraqutni (319), al-Hakim (2/35) and al-Bayhaqi (5/296); Ibn Abd al-Barr notes (al-Tirmidhi, 4/322) that the chain is not established as connected, the best being Sa'id ibn al-Musayyib's mursal
Ibn al-Qayyim (I'lam al-Muwaqqi'in, 2/412-414) summarizes the disagreement over this hadith: Malik saw in it the prohibition of unequal exchange within one kind (the animal for its meat), of the category of muzabana, gharar and gambling: one does not know whether the animal contains as much meat as one gives, more or less; and meat for meat is not permitted unequally; so selling the animal for the meat is like selling the meat hidden in its skin for meat, if the two are of one kind; different kinds are permitted by Malik and his companions without disagreement. The people of Kufa (like Abu Hanifa) do not act on this hadith and permit selling meat for the animal absolutely. Ahmad forbids the sale within the kind, not outside the kind, though some of his companions forbade it too. Al-Shafi'i forbids both, and transmits from Ibn Abbas that a cow was slaughtered in the time of Abu Bakr the Truthful, divided into ten parts, and a man asked for one part for a sheep: Abu Bakr said: «this is not proper»; al-Shafi'i concludes: I know of no Companion disagreeing with Abu Bakr over that.
The correct position in this hadith, if established, per Ibn al-Qayyim: the animal intended is that sought for its meat (a sheep whose flesh is wanted), sold for meat: then one has sold meat for more meat of one kind, and meat is a weighed food into which enters the riba of surplus. But if the animal is not sought for its meat (inedible, or edible without its flesh being intended, like the horse sold for camel meat), its sale for meat is not forbidden, except where it is an edible thing outside the kind of meat and its flesh is not intended: it then resembles muzabana between two kinds, like a bunch of dates for a bunch of raisins; most jurists do not forbid it, for it all reduces to surplus between two kinds, and realized surplus between them is lawful. Ahmad, in one of the two narrations, forbids it, not for the surplus, but for its resemblance to muzabana and gambling.
The kinds of meats (lumann) among the schools: Abu Hanifa says they are different kinds by their origins; Malik: three classes (the meat of quadrupeds, livestock and game, one class; the meats of birds, one class; the meats of water creatures, one class); al-Shafi'i says, in one view, that they form a single kind, and in another, kinds absolutely; Ahmad has three narrations: different kinds by their origins absolutely (like Abu Hanifa and one of al-Shafi'i's two views); four kinds (livestock, game, birds, water creatures); a single kind (like al-Shafi'i's second view), which is al-Khiraqi's choice. Consequence: whoever says a single kind permits no sale of one part for another unequally; whoever says three or four kinds permits the sale of each class against another unequally, never deferred; the same debate applies to milks (al-Ifsah, 1/369-370).
The jurists differ over selling an animal for animals in greater number, and over the riba of surplus or deference that may enter it, in four positions. The first, that of the Shafi'is and Hanbalis in the school: there is no riba in animals at all, neither surplus nor deference: selling a sheep for two, a camel for two, a hen for two, even deferred, is permitted, and likewise for the rest of the animals. Basis: Abdallah ibn Amr reports that the Messenger of Allah ordered him to equip an army; the camels ran short; he ordered him to take from the zakat camels, for a mature camel (qilas), two camels: he thus took one camel for two among the zakat camels.
The Messenger of Allah ordered me to equip an army; the camels ran short; he ordered me to take from the zakat camels, for a mature camel, two camels, and I took the camel for two camels.Hasan hadith, narrated by Abu Dawud (3357) and Ahmad (2/171)
Ali sold his camel called 'Usayfir for 20 camels deferred (narrated by Malik in al-Muwatta, 799); Ibn Abbas sold a camel for four camels; Ibn Umar bought a riding beast for four camels guaranteed to him, to be paid at al-Rabadha; Rafi' ibn Khadij bought a camel for two, gave one and said: «I will bring you the other tomorrow». And Abu al-Zubayr transmits from Jabir: a slave came to pledge allegiance to the Prophet for emigration, without anyone realizing he was a slave; his master came to reclaim him; the Prophet said: «sell him to me», and he bought him for two black slaves; after that he pledged allegiance to no one without asking: is he a slave? (Muslim, 1602). Al-Nawawi (Sharh Sahih Muslim, 11/39): this hadith establishes the permissibility of selling a slave for two slaves, whether the value is identical or different, by agreement if the sale is immediate; the same applies to the rest of the animals: selling a slave for two, or a camel for two, deferred, is permitted per al-Shafi'i and the majority. Our school also establishes: everything that is neither food, nor gold, nor silver may be sold part for part in greater number and deferred, and the majority of scholars say so.
The second position, that of the Hanafis and of the Hanbalis in one view: selling an animal for an animal deferred is not permitted, per the hadith of al-Hasan from Sumra: the Messenger of Allah forbade the sale of an animal for an animal deferred.
The Messenger of Allah forbade the sale of an animal for an animal deferred.Authentic hadith, narrated by Ahmad (20155), Abu Dawud (3356), al-Tirmidhi (1237), al-Nasa'i (4620) and Ibn Majah (2270)
The animal kind indeed fulfils one of the two attributes of the cause of the riba of surplus, so deference is forbidden in it as in the measurable and the weighable (al-Mabsut, 2/122-123; al-Bahr al-Ra'iq, 6/139; Sharh Fath al-Qadir, 7/12; Sharh Mushkil al-Athar, 4/60-63). The third position, a narration among the Hanbalis: deference is forbidden only when one sells a kind for itself unequally; at parity there is no harm, per Jabir: the Prophet said: «the animal: two for one, no deference; hand to hand, no harm» (al-Tirmidhi says: hasan hadith); and Ibn Umar reports that a man asked: «Messenger of Allah, what do you say of the man who sells the horse for mares and the noble she-camel for camels?» He said: «no harm hand to hand»: which indicates, by its implication, the permissibility of deference at parity (al-Mughni, 4/31; al-Mughni, 4/149).
The fourth position, the well-known Maliki view. Malik: the agreed-upon matter among us is that a camel for an identical camel plus some dirhams, hand to hand (munajaza), is permitted, for it is a sale without salam. A camel for an identical camel plus dirhams, the camel delivered hand to hand and the dirhams deferred, is permitted, for they are two distinct sales. A camel for an identical camel plus dirhams, the dirhams cash and the camel deferred, is not permitted; and if both are deferred, not either. Buying a noble camel for two camels, or for a pregnant she-camel among the baggage camels, is permitted; if the beasts are of one flock but differ in quality, buying two for one deferred is permitted once they differ; if they resemble one another, two for one deferred is not taken. What is disliked: taking a camel for two with no difference in nobility or carrying: then two for one deferred is not bought; the reason is that a difference of benefits turns the single kind into two kinds, and the aim of exchange is benefit and need, not increase in the salam (al-Muwatta, 2/652; al-Mudawwana al-Kubra, 9/25; al-Istidhkar, 6/414-416; al-Kafi, 1/318; Sharh al-Zurqani, 3/382-383; Mawahib al-Jalil, 6/171; al-Furuq, 3/417-418).
Ibn al-Qayyim, after citing these hadiths (Zad al-Ma'ad, 3/488-489), summarizes three possible courses before them: weakening them (the hadith of al-Hasan from Sumra, who heard only two hadiths from Sumra, of which this is not one, and the hadith of Hajjaj ibn Arta); invoking abrogation, though the later text is not identifiable; or carrying them on differing circumstances: the prohibition of selling an animal for an animal deferred aimed at blocking the path to deference in ribawi wealth, for whoever sees the profit in this sale will be drawn to deference in the ribawi as well; the Prophet thus blocked the path, permitted hand to hand, and forbade deference. What is forbidden as a path is permitted for an overriding interest, as the 'araya were excepted from muzabana for an overriding interest, and what need calls for was permitted; the hadith of Ibn Amr occurred in jihad, at the Muslims' need to equip the army, and the interest of that equipment outweighs the harm of selling animal for animal deferred: the Sharia does not sacrifice the overriding interest to the lesser one. Analogous examples: silk permitted in war, and pride permitted in it, their benefit outweighing their harm; likewise the silk cloak given by the king of Ayla, worn a moment then removed for the overriding interest of winning him over, after the prohibition of wearing silk, in the ninth year of the Hijra.
The jurists differ over selling rutab (fresh ripe dates) for tamr (dry dates) and grapes for raisins, in two positions. Abu Hanifa judges the sale permitted, measure for measure, and likewise grapes for raisins, for rutab is tamr: the Prophet, offered rutab of Khaybar, said:
«Do all the date palms of Khaybar yield like this?»Narrated by al-Bukhari (2202) and Muslim (1593)
He thus named it tamr. The sale of tamr for its like, at parity, is permitted: tamr and rutab are either one kind or two kinds; if one kind, selling part for part at parity and immediately is permitted, per the Prophet's words: «tamr for tamr, measure for measure, equal for equal, hand to hand»; if two kinds, selling one for the other is permitted by the sequel of the hadith: «when these classes differ, sell as you wish, hand to hand» (Muslim, 1587).
Abu Hanifa argues further: rutab is a type of tamr that diminishes through drying and long storage, but that cannot prevent selling it for more tamr of its kind, as selling fresh dates for old dates is permitted though the fresh diminish; parity within the kind is considered at the moment of the contract, and later surplus has no effect, like sesame: sesame is sold for sesame at parity though they may later differ as extracted oil. And since the sale of 'araya (rutab on the fronds, measurable only by estimation) is permitted, selling tamr for measurable rutab at parity is more permissible still, and further from riba.
The majority of scholars (Malikis, Shafi'is, Hanbalis, and the two Hanafi companions Abu Yusuf and Muhammad) judge the sale of rutab for tamr, and of grapes for raisins, not permitted, per the hadith of Sa'd ibn Abi Waqqas: the Prophet was asked about selling rutab for tamr; he asked: «does the rutab diminish when it dries?» They said yes. He forbade it.
The Prophet was asked about selling rutab for tamr; he asked: «does the rutab diminish when it dries?» They said: yes. He therefore forbade that sale.Authentic hadith, narrated by Abu Dawud (3359), al-Tirmidhi (1225), al-Nasa'i (4545), Ibn Majah (2264) and Ahmad (1/175)
That question, though phrased as interrogation, does not aim at interrogation but at affirmation (taqrir), like the word of Allah: «what is that in your right hand, O Musa?» (Surah Ta-Ha, 17), which was not Allah asking but confirming. The Messenger of Allah's question thus points to the cause of the prohibition: everything among the kinds that diminishes when dried is not sold part for part; rutab, on the palms or on the ground, sold for unknown dates, is a muzabana. And it is a ribawi kind of which what remains in the state of fresh storage (idkhar) is sold for what has left it, with possible surplus between the two at storage: the sale itself must therefore be forbidden, like selling wheat for its flour, or for roasted wheat. The meaning of «with possible surplus at storage» is a safeguard against the 'uriyya case: rutab on the palm is estimated (kharas), then one sees what it becomes, deducts what is lost in drying, and sells it for the equivalent in tamr (al-Hidaya, 3/164; Sharh Fath al-Qadir, 7/27-28; al-Jawhara al-Nayra, 3/129; al-Ikhtiyar, 2/38; al-Umm, 3/79; al-Hawi al-Kabir, 5/130-134; al-Mughni, 4/32; Kashshaf al-Qina', 3/297).
The jurists differ over the ruling on the fee taken for a male's breeding service (dirab al-fahl), in two positions. The first is that of the majority (Hanafis, Shafi'is, Hanbalis): hiring the male for that purpose is not valid; it is void and unlawful, and no compensation is due for it; if the hirer has him mount, neither the named wage nor the equivalent wage is owed him, nor anything of wealth, for it is an unknown gharar, impossible to deliver. Muslim transmits from Abu al-Zubayr, from Jabir ibn Abdallah:
The Messenger of Allah forbade the fee of the camel's stud (dirab al-jamal).Narrated by Muslim (1565)
And Ibn Umar reports: the Prophet forbade the 'asb of the male (narrated by al-Bukhari, 2284). The 'asb is the wage taken for the mounting; some say the male's 'asb is his water by which he impregnates the females. The fahl, linguistically, is the male of any animal. Al-Baghawi (Sharh al-Sunna, 8/138): the prohibition means the wage taken for the mounting, as established in the hadith of Jabir (the prohibition of the camel stud's fee); the wage was expressed by the word 'asb because it is its cause: the mounting itself and the releasing of water are not unlawful, since offspring is preserved through them; hiring the male for breeding is therefore forbidden because of the gharar: the male may mount or not, the female may or may not be impregnated. Most of the Companions and jurists judged it forbidden. As for lending the male for breeding, there is no harm; and if the borrower then honors the owner with a gift, he may accept it.
Al-Kasani (Bada'i' al-Sana'i', 4/175): hiring the male for mounting is not permitted, for the aim is offspring, which passes through releasing the water, a substance; it is narrated from the Messenger of Allah that he forbade the male's 'asb, that is, its hire: the word 'asb, though naming the mounting in the language, cannot be carried to it, for the mounting is not forbidden, its prohibition cutting off offspring; what is meant is the wage of the mounting, the word wage being omitted, as in Allah's word «ask the village» for «ask the people of the village» (Surah Yusuf, 82). Ibn al-Qayyim (Zad al-Ma'ad, 5/794): naming the mounting fee a sale is explained either because what is intended is the male's very water, the price being paid for a substance of his water, which is the reality of sale; or because its hire is an exchange contract, a sale of benefits, and the custom is that people hire the male for mounting: that is what was forbidden, and the contract referred to is void, sale or hire; this is the view of the majority of scholars, among them Ahmad, al-Shafi'i, Abu Hanifa and their companions.
The majority of jurists who forbid the fee add: if the owner of the female offers the owner of the male a gift or does him an honor, he may accept it, for its cause is lawful, like the cupper's reward. But if it is a disguised compensation with an inward condition, Ibn al-Qayyim says it is not lawful, and this will come. If someone needs this and finds no one to mount his animal for free, the animal's owner may pay a wage: it is spending to obtain a lawful benefit for a need; but it is forbidden for the owner of the male to take that compensation, by the prior prohibition. Ibn Taymiyya (Majmu' al-Fatawa, 30/320): if another's male mounts his beasts, the offspring is his; but if he wrongfully over-uses the mounting to the point of harming the male, he guarantees to the owner what he loses by it; if he cannot know it, he gives its value in charity; the Prophet forbade the male's 'asb.
The second position is that of the Malikis and of Ibn Aqil among the Hanbalis: hiring the male for that is permitted if fixed to a known number of mountings or to a term, for it is a contract upon the male's benefits and his mounting of the female, a sought benefit; the male's water enters it secondarily, occurring mostly after his mounting: it is like contracting upon the milk in the infant's belly, like hiring land in which there is a well, the water entering secondarily; and what follows may be obtained where what is followed cannot. The narrated prohibition is interpreted as discouragement (tanzih) and encouragement to noble character: taking a wage for that is not noble; but if he does it, the hire is not rescinded, and if he took the wage, it is not returned to him. Al-Qarafi: hiring the male for breeding is permitted for a known number of mountings or for a month; it may not be taken mounting by mounting, because of gharar; the imams forbade it absolutely because of the hadith on the male's 'asb, or because he is incapable of delivering (the mounting depends on the male's choice), or because it is a lowly thing that compensations cannot match, or because a substance is obtained through it: all of these are causes of voidness. The answers: the prohibition bears on what contains gharar, namely the condition of pregnancy, so as to reconcile the proofs; the male's mounting is known by his nature, so he is capable of delivering; the male's movement is habitually intended by all rational people, without which offspring would be void; and that substance is like milk in suckling out of necessity (al-Dhakhira, 5/413-414; al-Tabsira, 10/4971).
Al-Lakhmi transmits from Malik the disapproval of selling the male's 'asb, for it is not noble character; Sahnun: if the male is hired for two mountings and the animal is spent after the first, the hire is rescinded, like the infant in suckling. Ibn al-Qayyim specifies Malik's position: it is reported from him as permission, and his companions detailed it: the author of the Jawahir, in the chapter of the contract's corruption by the Legislator's prohibition, cites the sale of the male's 'asb, whose prohibition means hiring the male against impregnating the female, a corrupt contract as impossible to deliver; but hiring him for known mountings is permitted, a known term and deliverable. The correct position, Ibn al-Qayyim adds: the prohibition is absolute, the contract void in every case, the mounting fee unlawful for the one who takes it, not for the one who gives it, for the latter spends his wealth to obtain a lawful thing he needs, like the cupper's gain and the well-digger's wage. The Prophet forbade what they habitually did (hiring the male for mounting) and named it the sale of its 'asb: his words can therefore not be carried elsewhere than to the real and customary case, which is precisely what the prohibition intended. It is moreover known that the hirer has no true aim in the mounting itself, but in its consequence and fruit, for which he spent his wealth.
The prohibition has been established by several causes. The first: the object of the contract cannot be delivered, like hiring the runaway, for all of that depends on the male's choice and desire. The second: what is intended is the water, which may not alone be the object of a contract, being unknown in measure and substance, unlike hiring the milch animal, which bears human benefit and is therefore incomparable. Or rather, and Allah knows best: the prohibition belongs to the beauties and perfection of the Sharia: exchanging the male's water for prices, making it an object of exchange contracts, is a thing first welcomed then disapproved by rational people, and whoever does it falls from their esteem; Allah made the nature of His servants, especially the Muslims, a scale of the fair and the ugly: what the Muslims see as fair is fair with Allah, and what they see as ugly is ugly with Him. This further shows that the male's water has no value and cannot serve as a counterparty: if a man's male mounts another's she-camel and impregnates her, the offspring belongs to the she-camel's owner by agreement, for nothing remains to the male but the water alone, which has no value. The perfect Sharia therefore forbade compensation for mounting, so that people grant it among themselves for free, multiplying the needed offspring without harming the male's owner or diminishing his wealth. Among the beauties of the Sharia: the obligation to give it for free, as the Prophet said:
«Part of her rights is that her stud be lent and her bucket be lent.»Narrated by Muslim (988)
These are rights whose withholding harms people, outside of compensation: the Sharia therefore made it obligatory to grant them for free. If one says: when the owner of the female offers the owner of the male a gift or does him an honor, may he accept it? Answer: if it is by way of compensation and inward condition, it is not lawful; otherwise there is no harm, per the companions of Ahmad and those of al-Shafi'i: if the male's owner gives a gift or an honor without hire, it is permitted. Our proof is the hadith narrated from Anas: «if it is an honor, there is no harm»; the author of al-Mughni mentions it without knowing its status or who narrated it. Ahmad, in the narration of Ibn al-Qasim, was asked: is it not like the cupper, paid though his fee is forbidden? He said: we have not learned that the Prophet gave for such a thing, unlike the cupper. His companions differed: the judge (al-Qadi) took his words literally, holding that this is what reflection requires, the cupper being an exception; Abu Muhammad (Ibn Qudama) writes in al-Mughni: Ahmad's words are understood as scrupulousness (wara'), not prohibition, and permission is gentler for people and closer to analogy (Zad al-Ma'ad, 5/795-796).
The jurists of the four schools agreed on the unlawfulness and corruption of two sales in one sale, per Abu Hurayra: the Prophet forbade two sales in one sale.
The Prophet forbade two sales in one sale.Hasan hadith, narrated by Abu Dawud (3461), al-Tirmidhi (1231) and Ibn Hibban in his Sahih (4973)
They differed over what «two sales in one sale» means. The Malikis: two sales realized within a single sale, or arising from a sale; it is corrupt, through the prohibition striking it and the ignorance of the price at the moment of the contract: selling goods with a clause binding the buyer or the seller to conclude, with no way of abandoning it without hesitation of view and the settling of gharar: for example selling it for five dirhams cash, or for more, ten, at a term of a month, the two parties having agreed that the goods would bind him to one of the two prices; the buyer consents, takes the goods silently, then chooses after the contract is complete: it is a corrupt sale; if it is caught, it is rescinded; if the goods were taken and then lost, the one who took them returns their value on the day of taking. This was forbidden for gharar: the seller does not know what he sold, nor the buyer what he bought; reversing the figure (ten cash or five deferred) renders the sale valid, the hesitation disappearing, for the rational man chooses the deferred sale at the low price; and this sale is named «two sales» for the plurality of the price.
If the sale is concluded with the buyer holding an option between taking either of the two prices in full or returning both, as in: «I sell you these goods for five cash, or for ten deferred, the choice is yours», that is valid and is not of two sales in one sale, for the sale here is binding, concluded upon a specific thing; he has an option between two known things regarding one of them, and the first goods were not bought upon a specific thing with termination or option. The Mudawwana specifies: goods may not be sold for one dinar cash or two dinars at a month's term, nor for one dinar at a month's term or two dinars at two months' term, with obligation upon both or upon one, and the buyer may not accelerate the cash payment to validate the sale, for it is a corrupt contract; without obligation, it is permitted. Likewise selling one of two goods differing in kind or description: «I sell you one of these two things, the garment or the animal, for twenty», the buyer choosing after the sale is complete: a corrupt sale without an option clause, valid with it; selling an unspecified body among a cloak and a cover is not valid, for the thing sold is unknown in both cases, and the unknown is not sold; a differing price makes the corruption more apparent. But if the two differ only in quality (two sacks of wheat, one good and one bad, for a single price, the buyer choosing what pleases him), it is valid, for the custom is buying the good, not the bad (al-Kafi, 1/365; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 4/92-93; al-Taj wa al-Iklil, 3/376-378; Mawahib al-Jalil, 6/193).
The Shafi'is give «two sales in one sale» two meanings. The first: saying «I sell you this for a thousand, on condition you sell me your house for such a price», or that you buy mine for such a price: it is void, because of the suspension upon the condition in this form, for it is a non-binding clause whose absence makes the object of the contract fail. The second: saying «I sell it to you for a thousand cash, or for two thousand deferred (in installments); take whichever you wish, or I wish», the buyer accepting the cash sale or the installment sale: void too, through ignorance of the price. By contrast, saying «I sell it to you for a thousand cash and two thousand deferred», or «half for a thousand and half for two thousand»: the contract is valid (al-Muhadhdhab, 1/267; Rawdat al-Talibin, 3/61; Minhaj al-Talibin, 1/46; Mughni al-Muhtaj, 2/463).
The Hanbalis: two sales in one sale is like saying: «I sell you this house on condition I sell you my other house for such a price», or on condition you sell me your house, or that I hire from you or you hire from me for such a price, or that you marry me your daughter, or I marry you my daughter, and the like: none of that is valid. Likewise selling for ten cash, or fifteen deferred, or for ten sound coins, or twenty clipped ones: not valid, for the Prophet forbade two sales in one sale, and this is it; and because he was not bound by a single sale, like «I sell you one of these two»; and because of ignorance of the price; unless the two contracting parties separate upon one of the two, that is, one of the two prices, for the whole: then it is valid, the impediment having vanished, for it is a counterparty made specific by specification, like the goods (al-Mughni, 4/161; al-Kafi, 2/17; al-Mughni, 4/35; al-Insaf, 4/350; Sharh Muntaha al-Iradat, 3/150; al-Rawd al-Murbi', 1/557).
The Hanafis, per al-Haddad (al-Jawhara al-Nayra, 3/83): the prohibition of two clauses in a sale covers selling a slave for a thousand at a year's term, or a thousand five hundred at a two-year term, the contract not having settled on one of them; or saying: «if you pay me cash, it will be a thousand; if you defer it a month, it will be two thousand»; or saying: «I sell you for a qafiz of wheat, or for two qafiz of barley»: that is not permitted, for the price is unknown at the moment of the contract, and the seller does not know which of the two prices will bind the buyer (al-Khulasat al-Fiqhiyya ala madhhab al-sadat al-Hanafiyya, 2/53).
Ibn Rushd (Bidayat al-Mujtahid, 2/15-16) expounds the issue after the hadith of Abu Hurayra: the jurists agreed on the general import of this hadith and differed in the detail, that is, over the figures carrying this name and those not carrying it. They also agreed on part of them, in three figures: two objects sold for two prices; one object for two prices; two objects for one price, with one of the two sales binding. Two objects for two prices appear in two ways: saying «I sell you these goods for such a price, on condition you sell me this house for such a price»; or saying «I sell you these goods for one dinar, or this other one for two dinars». One object for two prices: one of the two prices cash, the other deferred, like «I sell you this garment cash for such a price, on condition I buy it back from you at a term for such a price». Two objects for one price: «I sell you one of these two for such a price».
First figure: al-Shafi'i explicitly holds it not permitted, for the price of both remains unknown: had the two sales been separated, they would not have agreed, each one, upon the price agreed upon for both in a single contract; al-Shafi'i's basis in rejecting two sales in one sale is ignorance of the price or of the object sold. Second figure: it is not permitted among all when one of the sales is binding, whether the cash is identical or different; Abd al-Aziz ibn Abi Salama diverged by permitting it in both cases; the cause of prohibition among all is ignorance, and with Malik the blocking of the means: one may choose one of the two garments, thereby selling garment and dinar for garment and dinar, which is not permitted upon Malik's basis. Third figure: saying «I sell you this garment cash for such a price, or deferred for such a price»: if the sale there is binding, there is no disagreement over its non-permissibility; if the sale is not binding upon one of the two, Malik permitted it, Abu Hanifa and al-Shafi'i forbade it, for they settled upon an unknown price; Malik saw in it an option, for if the option-holder can choose, no regret appears that would transform one of the two prices into the other; and the impediment with Malik is blocking the path leading to riba: one may first execute the contract at one of the two prices, the deferred or the cash, then have an unseen change of mind and leave one of the two prices for the second, thus selling one of the two prices for the second, which enters into price for price deferred, or deferred and unequal; all of that if the price is money; if it is not money but food, another cause is added: selling food for food unequally.
Saying «I buy from you this garment cash for such a price, on condition you sell it back to me at a term» is not permitted among them by consensus: it is the category of the 'ayna sale, a man's sale of what is not at hand, to which the cause of ignorance of the price is also added. Saying «I sell you one of these two garments for a dinar, one of them binding him, and they separated before the choice»: if the two garments are of two classes, one of which may be delivered within the other, there is no disagreement between Malik and al-Shafi'i over its non-permissibility; Abd al-Aziz ibn Abi Salama says it is permitted; the cause of prohibition is ignorance and gharar. If they are of one class, Malik permitted it, not Abu Hanifa nor al-Shafi'i: Malik authorized it, for he permits the option after the contract of sale among equal classes, the gharar being little in his view; those who forbid it judge it by the gharar that is not permitted, for they settled upon an unknown sale. In sum: the jurists agree that abundant gharar in sales is not permitted, and that little is; they differ over certain categories of gharar, some attaching them to abundant gharar, others to the permitted little gharar, hesitating between the two (Bidayat al-Mujtahid, 2/15-16; cf. al-Ifsah, 1/407).
Ibn al-Qayyim, finally, interpreted the two sales in one sale as being the two clauses of the sale in the following hadith, and the lesser of the two sales or the riba in a third hadith: it is the blocking of the path to riba; for whoever sells goods for a hundred deferred then buys them back for two hundred cash has made two sales in a single sale.