Forbidden sales, part 2

This second part of the chapter on prohibited sales opens with the conclusion of the debate on the choice between the two prices, then gathers nineteen sheets: mu'amasa and munabadha, muhaqala and muzabana, selling fruit before its ripeness appears, waiving the price in case of calamity and the quantum waived, selling food before taking possession, total or partial destruction of the goods before qabd, what constitutes possession, selling before the two measures (as-si'an) are poured, the animal with the swollen udder (al-musarra), najsh, the broker's complicity in the purchase, collusion on auctions, intercepting incoming caravans, and the sale by the town dweller to the nomad. The positions of the four schools are reported with their prophetic proofs, their exact figures and their classical references.

Ibn al-Qayyim had concluded the previous debate thus: taking the higher price is taking riba; if he takes the lower, he takes the lesser of the two. Yet this is one of the greatest pretexts leading to riba, and it is the farthest of all things from reading the hadith of selling an item for one hundred [dirhams] deferred or fifty paid at once, for there is in it no riba, no jahala, no gharar, no gambling, nor any of the corruptions, since the buyer was given the choice between the two prices he wants. Nor is this stranger than giving him, after the sale, the choice between taking and confirming for three days. Moreover, the one who holds this argument distinguished two contracts, each of which is a very visible pretext toward riba: salaf and sale, and the two conditions in a sale; and between these two contracts there are ties of kinship and brotherhood, and a recourse to them for consuming riba, such that they require being joined in prohibition. May the prayers of Allah and His peace be upon the one whose speech is healing, preservation, guidance and light (I'lam al-Muwaqqi'in 3/149-150).

The sale of mu'amasa and munabadha

The jurists agreed on the prohibition of the sale of mu'amasa (by touch) and munabadha (by throwing), and on its being a corrupted sale, by the hadith of 'Amir b. Sa'd reporting that Abu Sa'id al-Khudri (may Allah be pleased with him) informed him that the Messenger of Allah (peace and blessings of Allah be upon him) forbade munabadha, which is a man throwing his garment to the other for sale before turning it over or looking at it, and forbade mu'amasa, which is touching the garment without looking at it (narrated by al-Bukhari 2144 and Muslim 1512). In each of these two sales, ownership is indeed suspended upon chance, which belongs to the sale of gharar and gambling: the one who has not examined his purchase and does not know its description does not know its reality; he thus consumes the wealth of his brother unjustly, and this belongs to the sales of Jahiliyya.

Ibn 'Abd al-Barr (may Allah have mercy on him) said: the Messenger of Allah invalidated what the people of Jahiliyya used to practice by taking a thing in the manner of gambling, and permitted it by mutual consent; the Quran spoke of it in the word of Allah:

"O you who believe, do not consume your wealth among yourselves unjustly, unless it be a trade by mutual consent among you."

Surat an-Nisa' (The Women), 29

Yet the Messenger of Allah forbade many sales even though the two parties agreed to them. The ruling on the sale of mu'amasa and munabadha, and everything like them, is: if it is found, it is rescinded; if it is lost, its value on the day of taking possession is returned to the buyer, whatever it reached (at-Tamhid 13/14).

Ibn Rushd (may Allah have mercy on him) said: as for mu'amasa, its form in Jahiliyya was that a man touches the garment without unfolding it, or buys it at night without knowing what is in it: this is agreed upon as prohibited, and the cause of its prohibition is ignorance of the description. As for munabadha, each of the two contracting parties threw his garment to the other without specifying that this item was for that one; rather, they left that to chance encounter (Bidayat al-Mujtahid 2/111). Ibn Qudama (may Allah have mercy on him) said: the sale of mu'amasa and munabadha is not permitted, and we know of no disagreement among the people of knowledge on the corruption of these two sales (al-Mughni 4/145). The statements of the jurists in defining mu'amasa and munabadha have differed, though all are near to being alike.

The Hanafis defined mu'amasa as: one says, "I sell you this item for such and such"; as soon as the other touches it, the sale becomes binding on him, or the buyer says the like. As for munabadha, it is that a man throws his garment to another and the other throws his garment to him, their sale taking place thereby without examination or consent (al-Jawhara an-Nayyira 3/78-79; al-Lubab 1/381; 'Umdat al-Qari 11/66; Mukhtasar Ikhtilaf al-'Ulama' 3/75-76).

The Malikis said: munabadha is selling a garment for its like or for dirhams by throwing it to the buyer, with commitment upon the throw, without examination; the reciprocity (mufa'ala) in it may be mutual, as when it is stipulated upon you to throw the valued item and upon him to throw the price, or one-sided, as when the stipulation comes from only one of the two. As for mu'amasa, it is never mutual: it comes from one side only, when the seller binds the buyer to the sale by his mere touch, without inspection or examination (Sharh Sahih al-Bukhari by Ibn Battal 6/273; at-Tamhid 13/14; al-Istidhkar 6/459).

The Shafi'is defined the sale of mu'amasa as: bringing a folded garment, or one in darkness; the buyer touches it and its owner says, "I sell it to you for such and such, on condition that your touch takes the place of your examination, and you have no option if you see it afterward"; or they make the touch itself the sale, saying, "When you touch it, it is sold to you"; or: "I sell you such a thing on condition that, when you touch it, your option of counsel lapses". As for munabadha, it is making the throw a sale: "I sell you this for such and such, on condition that when I throw it to you, the sale becomes binding and your option lapses" (al-Hawi al-Kabir 5/337; al-Muhadhdhab 2/66; Sharh Sahih Muslim 10/154; Rawdat at-Talibin 3/60-61; al-Wasit 3/459; Nihayat al-Muhtaj 3/516; an-Najm al-Wahhaj 4/79; Mughni al-Muhtaj 2/462).

The Hanbalis said: mu'amasa is saying, "I sell you this garment on condition that whenever you touch it, it is yours for such and such", or, "Whichever garment you touch is yours for such and such"; and munabadha is saying, "Whichever garment you throw to me, that is, cast to me, you owe such and such" (al-Mughni 4/145-146; al-Mubdi' 4/29; Sharh Muntaha al-Iradat 3/140-141; Kashshaf al-Qina' 3/191-192; ar-Rawd al-Murbi' 1/542).

The sale of muhaqala and muzabana

The people of knowledge agreed on the prohibition of muhaqala and muzabana and on their corruption, by what the two shaykhs, al-Bukhari and Muslim, narrated: that the Prophet (peace and blessings of Allah be upon him) forbade muhaqala and muzabana (al-Bukhari 2186; Muslim 3989). In Muslim's wording, Jabir b. 'Abdallah (may Allah be pleased with him) said: the Messenger of Allah forbade muhaqala, muzabana, mu'awama and mukhabara, and the thuniya, and granted a concession for 'araya (Muslim 3994).

From 'Ata' b. Abi Rabah, Jabir b. 'Abdallah reported that the Messenger of Allah forbade muhaqala, muzabana and mukhabara, and the buying of palm trees until they split (ishqa meaning they redden, yellow or become edible), muhaqala being the sale of a field for a known measure of food, muzabana the sale of dates on the palms for wasqs of dates, and mukhabara the third, the quarter and the like of that. Zayd (the narrator) said: I said to 'Ata' b. Abi Rabah: did you hear Jabir b. 'Abdallah mention this from the Messenger of Allah? He said: yes (Muslim 3992). Ibn al-Mundhir (may Allah have mercy on him) said: they agreed on the prohibition of selling muhaqala and muzabana, Ibn 'Abbas being alone, that is, he did not prohibit it (al-Ijma' 477).

Imam an-Nawawi (may Allah have mercy on him) said: selling fresh dates for dry dates, which is muzabana as the hadith explains it, is haram; the word derives from zabn, meaning dispute and confrontation. The scholars agreed on prohibiting the sale of fresh dates for dry dates outside 'araya, and that it is riba. They also agreed on prohibiting the sale of grapes for raisins, and on prohibiting the sale of wheat in its spikes for pure wheat, which is muhaqala, taken from the field, that is, the plowed land and the place of sowing. According to the majority, it makes no difference whether the fresh dates and grapes are on the tree or cut; Abu Hanifa said: if they are cut, selling them for their like in dried form is permitted (Sharh Sahih Muslim 10/188-189).

As for 'araya, they are that the appraiser estimates palm trees and says: these fresh dates, when dry, will yield, for example, three wasqs of dates; their owner sells them for three wasqs of dates, and the exchange takes place in the session: the buyer hands over the dry dates and the seller hands over the fresh dates by leaving them in place. This is permitted below five wasqs and not permitted beyond five; on the permissibility of five wasqs there are two narrations from ash-Shafi'i, the sounder being that it is not permitted, for the principle is the prohibition of selling dry dates for fresh dates, and 'araya came as a concession; the narrator doubted between five wasqs or less, so certainty must be taken, which is below five, the five remaining under prohibition. The most correct view is that it is permitted for both the poor and the rich, and that it does not extend to fruits other than fresh dates and grapes; a weak view restricts it to the poor. This is the doctrine of ash-Shafi'i concerning 'araya, and Ahmad and others said the like of it; Malik and Abu Hanifa interpreted it otherwise, but the apparent hadiths reject their interpretation (Sharh Sahih Muslim 10/188-189).

In al-Majmu' it is said: the authentic hadiths are established that the Messenger of Allah forbade muhaqala. The scholars said: muhaqala is selling wheat in its spikes for a known measure of wheat, and the scholars agreed on its invalidity, for two causes joined with the hadith: the first is that it is the sale of wheat and straw for wheat, and that is riba; the second is that it is the sale of wheat in its spikes, so that if one sells barley in its spikes for pure wheat and they exchange in the session, the sale is permitted without disagreement. Likewise, selling a crop before its grain appears for a grain of its kind is a valid sale without disagreement, because grass is not ribawi (al-Majmu' 9/293).

The statements of the jurists in defining muhaqala and muzabana have multiplied, though their content is one and close. The Hanafis said: muhaqala is selling wheat in its spikes for its like in wheat, measured by estimation (khars), for he sold a measured thing for a measured thing of its kind, which is not permitted by way of estimation, as when both are placed on the ground; likewise grapes for raisins. Muzabana is the sale of fruit on the palm for dated fruit measured by estimation (al-Mabsut 12/193; al-Hidaya 3/44; al-Jawhara an-Nayyira 3/78; Tabyin al-Haqa'iq 4/47).

The Malikis said: muzabana is selling a thing whose weight, measure or number is unknown for a known quantity of its kind, such as a juzaf of wheat or other against an irdabb of it; or for an unknown quantity of its kind, such as selling a jar full of wheat for another jar full of wheat without knowing the quantity in each, or selling a cage of peaches for its like when the quantity in neither is known, or selling a bale of cotton for its like. This applies to food and other than food, such as cotton and iron and the like among comparable goods (mithliyyat); if the genus differs, even by transport, selling for an approximate quantity (juzaf) is permitted. Food changes its genus by cooking with spices, and the removal of ghee from milk and bread; non-food changes its origin by a notable craft, such as vessels. As for muhaqala, it is buying the crop for wheat, and leasing the land for wheat.

Ibn 'Abd al-Barr (may Allah have mercy on him) said: Malik narrated, from Ibn Shihab from Sa'id b. al-Musayyib, that the Messenger of Allah forbade muzabana and muhaqala, muzabana being buying fruit for dates, and muhaqala buying the crop for wheat, and leasing the land for wheat. This hadith is mursal in the Muwatta' from all the narrators, and the companions of Ibn Shihab narrated it from him; Ahmad b. Abi Tayba also narrated it from Malik, from az-Zuhri, from Sa'id b. al-Musayyib, from Abu Hurayra (may Allah be pleased with him), from the Prophet. Its explanation of muzabana and muhaqala suffices whoever understands, and no known disagreement contradicts this interpretation: it is the best and broadest explanation of muzabana and muhaqala (at-Tamhid 6/441; see al-Muwatta' 2/625-626 and al-Kafi 1/313).

The Shafi'is said: muhaqala is selling wheat in its spikes for a measure of wheat; selling barley in its spikes for pure wheat with exchange in the session, or selling a crop before the grain appears for a grain, is permitted, because grass is not ribawi. As for muzabana, it is the sale of fresh dates on the palm for dry dates on the ground (al-Hawi al-Kabir 5/212; Rawdat at-Talibin 3/200; Sharh Sahih Muslim 10/188).

The Hanbalis said: muhaqala is selling hardened grain, such as wheat and barley, in its spikes, for a grain of its kind, and likewise selling cotton in its roots for cotton; if the grain is not hardened and is sold, even of its kind to the owner of the land, or with the condition of cutting, the sale is valid if he benefits from it. Muhaqala derives from the field, that is, the crop when it branches before its stalks harden. Muzabana is selling fresh dates on the palm for dates, except 'araya, which is selling fresh dates on the palm by estimation for the like of what the fresh dates become when dry, by measure below five wasqs, for the one who has need of eating the fresh dates and has no price (Kashshaf al-Qina' 3/299; Sharh Muntaha al-Iradat 3/252; ar-Rawd al-Murbi' 1/581; Matalib Uli an-Nuha 3/163; al-Matali' p. 240).

Ibn 'Abd al-Barr said: the sale in muzabana, when it occurs, is dates sold for fresh dates, or raisins sold for grapes; likewise muhaqala, such as a crop sold for a bale or known measure of wheat, or dates sold on the palm heads approximately for a known measure of dates. All of this, when it occurs, is rescinded if it is caught, before or after taking possession: if possession occurred and it was lost, the owner of the dates takes back his measure of dates of its kind from the owner of the fresh dates, and the owner of the fresh dates takes back from the owner of the dates the value of his fresh dates on the day of possession, whatever it reached; likewise the owner of the palm and the owner of the crop take back the value of their dates and crop on the day of taking possession, and the owner of the measure takes back his measure according to the description of what he received (at-Tamhid 2/321).

Selling fruit before its ripeness appears

The jurists agreed that it is not permitted to sell any fruit on its own before its ripeness appears, nor the green crop, except with the condition of cutting: if cutting is stipulated, the sale is valid by agreement; if cutting is not stipulated but remaining until the time of harvest is, the sale is corrupted and invalid by consensus, by the saying of the Prophet (peace and blessings of Allah be upon him):

Do not buy fruits until their ripeness appears.Narrated by al-Bukhari (2082) and Muslim (1538)

He thereby forbade both the seller and the buyer. Anas b. Malik (may Allah be pleased with him) reported that the Messenger of Allah forbade selling fruits until they redden; he was asked: what is the reddening (tazhiy)? He said: until they redden. The Messenger of Allah then said: "Do you see: if Allah withholds the fruit, with what will one of you take his brother's property?" (al-Bukhari 2086). From Nafi', Ibn 'Umar reported that the Messenger of Allah forbade selling palm trees until they redden, and the spikes until they whiten and are safe from blight ('aha), forbidding both the seller and the buyer (Muslim 3943).

The reason is that the fruit may perish before it is reached, so the seller will have consumed his brother's wealth unjustly; and because it is a condition not required by the contract: it is an encroachment on the property of another, or a transaction within a transaction, a loan or a hire within a sale; likewise the sale of the crop with the condition of leaving. But if cutting is stipulated, this harm is removed: the prohibition was only out of fear of the fruit perishing or being blighted before it is taken, and this is safe in what is cut, so its sale is valid as if its ripeness had appeared. If the fruit is sold after its ripeness appears, its sale is valid absolutely, both with the condition of cutting and with the condition of remaining, according to the majority of scholars, by the understanding of these hadiths, by the rule that what is beyond the limit differs from what precedes it, and because safety predominates therein, unlike what precedes ripeness.

As for Abu Hanifa, he said: selling the fruit after its ripeness appears with the condition of remaining renders the sale corrupted, for it is a condition not required by the contract, an encroachment on another's property, or a transaction within a transaction, a loan or a hire within a sale: if a part of the price is given in return for the benefit of leaving, it is a conditional hire within the sale; if nothing of the price is given for it, it is a conditional loan within the contract; each of the two corrupts the contract. Likewise the sale of the crop with the condition of leaving; but if the purchase is made with the condition of cutting, the sale is valid: if he leaves them with the seller's consent, the growth in the fruits belongs to the buyer.

The jurists then differed when the fruit was bought before its ripeness appeared, without cutting or remaining being stipulated. The majority of the scholars, namely Malik, ash-Shafi'i and Ahmad, said: the sale is void, for the unconditional wording of the contract implies remaining, so the absolute contract becomes like that in which remaining is stipulated: the prohibition embraces both, and the same cause, namely the withholding and perishing of the fruit, justifies both. Abu Hanifa said: the sale is valid, and he is ordered to cut them to clear the seller's ownership, for the unconditional contract implies cutting, as if it had been stipulated: if he leaves them with the seller's permission, the surplus is good for him, for it is a donation of the benefits of his land; if he leaves them without his permission, he must give the surplus in charity, for he obtained it through a foul gain, being a usurper of the land: the increase came from the strength of the land, so he is like one who seizes land and cultivates it and must give the surplus in charity.

Imam Ibn Hubayra (may Allah have mercy on him) reported that they also differed when the fruit was bought before its ripeness appeared with the condition of cutting, and he did not cut it until its ripeness appeared and the time of its plucking came. Abu Hanifa, Malik and ash-Shafi'i said: the contract is valid and does not lapse; the fruit, with its increase, belongs to the buyer, and the seller is bound to perform the cutting. The Shafi'is said: if they agree on leaving it, that is permitted. Two narrations are reported from Ahmad: the first, that the sale lapses and the fruit and its increase belong to the seller, the price being returned to the buyer; the second, that the contract is valid and does not lapse, and as for what is done with the increase, there are two narrations: they share in it, or they give it in charity.

The appearance of ripeness in the fruit is its reddening or yellowing, which is the time of safety from blights in most cases, when its good taste and maturity appear. Likewise all other fruits: when what is eaten of them is good, the well-known palatable kind, as in the fig, the grape and the rest, their sale with the condition of leaving on the tree is permitted until the end of their season, once the whole is good. They differed when ripeness appears in a single tree: ash-Shafi'i and Ahmad said it is ripeness for the rest of that species in the orchard containing that tree. Malik said: if ripeness appears in one palm, the sale of that orchard and its neighbors is permitted, if the ripeness is the well-known kind, not the abnormal kind out of season; Ahmad has a similar view. As for Abu Hanifa, his position is what was mentioned above: the sale with the condition of remaining after ripeness is corrupted, and with the condition of cutting valid, the increase belonging to the buyer with the seller's consent.

They agreed that it is not permitted to sell the cucumber for the melon, the eggplant and the like, except one by one (qatfa qatfa). Likewise the fresh date (rutab): its sale is permitted only cut by cut, except Malik, who differed regarding what is not the rutab: if its beginning ripens, it is permitted to sell all of it on its roots. They differed on selling the plants whose roots are hidden by the soil, such as the carrot, the onion and the leek: Abu Hanifa, ash-Shafi'i and Ahmad said such a sale is not permitted until it is uprooted and seen; Malik said it is permitted when the roots have thickened, the branches indicate it, and the clay soil has reached its end. They also differed on selling walnuts, almonds and broad beans in their outer husk, and on selling wheat in its spikes when it no longer needs water: Abu Hanifa, Ahmad and Malik permitted it, while ash-Shafi'i did not permit it (al-Ifsah 1/376, 380; al-Mabsut 12/193-196; Tuhfat al-Fuqaha' 2/55-56; Bada'i' as-Sana'i' 5/168, 173; al-Hidaya 3/25-27; al-Jawhara an-Nayyira 3/25-27; al-Lubab 1/357; Tabyin al-Haqa'iq 4/12; at-Tamhid 2/190; al-Bayan wa at-Tahsil 7/243; adh-Dhakhira 5/183; Bidayat al-Mujtahid 2/112, 115; al-Hawi al-Kabir 5/190, 199; al-Muhadhdhab 1/281-282; Sharh as-Sunna 8/97, 102; Sharh Sahih Muslim 10/181-182; Asna al-Matalib 2/104, 108; al-Iqna' 2/289; al-Mughni 4/72, 74; al-Kafi 2/75-77; Majmu' al-Fatawa 20/544; Sharh az-Zarkashi 2/43-45; al-Mubdi' 4/167, 171).

Waiving the price in case of calamity (waq' al-jawa'ih)

The scholars differed concerning the fruit sold after its ripeness appeared, which the seller delivered to the buyer by leaving the space between him and it, and which then perished before the time of plucking by a heavenly calamity: is the loss part of the seller's guarantee or of the buyer's? There are two opinions. The first: what the calamity destroys of the fruits is part of the seller's guarantee. This is the view of the Malikis, the Hanbalis and ash-Shafi'i in his earlier opinion; however, the Malikis and the Hanbalis stipulated, for waiving calamities, that the calamity strike a third of the fruits or more: if it strikes less than a third, nothing is waived for the buyer; if it strikes a third or more, the buyer owes the value of the remainder after deducting what the calamity struck. They excepted from this the calamity of thirst, that is, drought: it is waived small and great, whether it reaches a third or not. They supported this by what Muslim narrated: that the Prophet (peace and blessings of Allah be upon him) ordered the waiving of calamity losses (Muslim 1554, in the chapter on bringing ease), and by his saying:

If you sell your brother fruit and a calamity strikes it, it is not lawful for you to take anything from him; by what right would you take your brother's property?Narrated by Muslim (1554) and Abu Dawud (3470)

In Abu Dawud's wording: "Whoever sells fruit and a calamity strikes it, let him take nothing of his brother's wealth; why would one of you take his Muslim brother's property?" This text is explicit on the ruling, from which one does not turn away. It is also argued because the sold item retains, by the seller's right of completion, the obligation of watering it until it is complete, so it is as if it perished before possession and falls within the seller's guarantee, like all sales in which the right of completion remains. The difference between this sale and other sales, according to them, is that this is a sale enacted in the Shari'a while the goods are not yet complete, as if it were excepted from the prohibition of selling what has not yet been created; so its guarantee had to differ from that of other sales.

The second opinion: the calamity falls within the buyer's guarantee. This is the view of the Hanafis and the Shafi'is in the madhhab, by what 'Amra bint 'Abd ar-Rahman narrated: I heard 'Aisha (may Allah be pleased with her) say: the Messenger of Allah heard at the door of a lofty chamber the raised voices of two disputing men, one of them asking the other to waive part of his debt in kindness, while the latter said: by Allah, I will not do it. The Messenger of Allah came out to them and said: "Where is the one who swears by Allah that he will not do good?" The man said: it is I, O Messenger of Allah, and I shall take whichever of the two I prefer (al-Bukhari 2705; Muslim 1557). The Prophet thus made the deduction for the buyer as an exit of goodness and grace, not as an exit of obligation: he did not compel the seller to it until he himself arrived at it and volunteered it; had it been obligatory, he would have compelled him.

It is also argued that leaving the space suffices to permit disposal of the goods; it therefore suffices to permit the transfer of the guarantee, by analogy with real estate, for in this sale leaving the space is the taking of possession, and the guarantee of sales after possession belongs to the buyer; just as he does not guarantee it when a human destroys it, he does not guarantee it by the destruction of another.

From Abu Sa'id al-Khudri (may Allah be pleased with him): a man was struck in the time of the Messenger of Allah in fruits he had bought, and his debt grew; the Messenger of Allah said: "Give charity on his behalf." The people gave charity on his behalf, but it did not reach the fulfillment of his debt; the Messenger of Allah then said to his creditors: "Take what you find; you have nothing but that" (Muslim 1556). The Prophet thus did not rule the waiving of the calamity: had it been waived, he would not have needed that. As for the command to waive calamity losses, it is a matter of recommendation, or it applies to what was sold before its ripeness appeared; for that command came after the buyer's ownership was established, and he could have sold the fruit or gifted it; and the Messenger of Allah forbade selling the fruit before its ripeness appeared: had the fruit after ripeness belonged to the seller, this prohibition would have had no benefit.

Ibn al-Qayyim (may Allah have mercy on him), after citing these hadiths, said: the answer is that the waiving of calamity losses contradicts nothing of the sound principles; rather, it is the requirement of the principles of the Shari'a, and we explain this, by the grace of Allah, in two stations. As for the first: the hadith of waiving calamities contradicts neither the Book, nor the Sunna, nor consensus; it is itself a source that must be accepted; as for the qiyas you mentioned, the testimony of the text to its invalidation suffices to show its corruption: what then when it is corrupt in itself? The second station shows that the waiving of calamities, while conforming to the authentic, explicit Sunna, is the requirement of the sound qiyas: the buyer has not taken delivery of the fruit, nor seized it with the complete seizure that would transfer the guarantee to him, for the seizure of each thing is according to its kind; the seizure of fruits occurs only at their complete gathering, little by little, like the taking of benefits in hire; the handing over of the orchard is like delivering the hired thing, and the seller's ties with the goods have not been cut, for he waters the tree and tends it, as the lessor's ties with the hired thing are not cut. The buyer has not received full delivery, just as the hirer has not; so when an overwhelming event sweeps away the fruit without negligence from the buyer, it is not lawful for the seller to compel him to the price of what Allah destroyed before he was able to take possession of it in the customary manner.

This is the meaning of the Prophet's saying: "Do you see: if Allah withholds the fruit, with what would one of you take his brother's property unjustly?" He stated the ruling, "it is not lawful for him to take anything from him", and stated the cause of the ruling, "if Allah withholds the fruit". This ruling is a text bearing no interpretation, and the reasoning is a fitting description admitting neither repeal nor opposition. Had the buyer been able to take possession in its time and then deferred it out of negligence, or in expectation of a price rise, the loss would be his guarantee, and the calamity would not be waived for him. As for opposing this Sunna with the hadith of the man struck in fruits he had bought, it belongs to rejecting the decisive by the ambiguous: the hadith does not mention that he was struck by a calamity, still less a general one; he may have been struck by a fall in its price. Even if the misfortune were a calamity, nothing in the hadith shows it was general: it may have been a particular one, like the theft of robbers from which one can guard, and such is not a calamity that drops the price from the buyer, unlike the plunder of armies and destruction by a heavenly calamity. Even if the calamity were general, nothing in the hadith shows the loss was not due to his negligence in delaying; and even without negligence, nothing shows he requested rescission and the waiving of the calamity: perhaps he was content with the goods and did not seek the waiver, and he is entitled to seek it or leave it. Since the proof is complete only with the two premises, how could the explicit, decisive text of the Prophet's words, which admits only one meaning, be opposed by this ambiguous hadith? His saying, "you have nothing but that", proves that nothing of the fruit sellers' debts remained upon the buyer, whereas according to you all the wealth is in his liability: the hadith is therefore a proof against you. As for the opposition by Malik's report, it is the weakest and most corrupt of oppositions: where does it say a calamity struck him in any way? It only says he treated him and attended him until the shortfall became clear, and such is not a cause for waiving the price. To Allah belongs success (I'lam al-Muwaqqi'in 2/356-358; see Majma' ad-Damanat p. 220; at-Tajrid of al-Quduri 5/2410-2411; Mukhtasar Ikhtilaf al-'Ulama' 3/101; al-Muwatta' 2/621; al-Istidhkar 6/313; at-Tamhid 2/194, 197; Sharh az-Zarqani 2/340; al-Bayan wa at-Tahsil 7/243; adh-Dhakhira 5/212-213; Bidayat al-Mujtahid 2/140-141; Hashiyat ad-Dasuqi 3/182 ff.; al-Qawanin al-Fiqhiyya p. 260-261; al-Umm 3/56; al-Muhadhdhab 1/296; Sharh Sahih Muslim of an-Nawawi 10/216-217; Hashiyat al-Bayjuri 2/405; Mughni al-Muhtaj 2/92; al-Hawi al-Kabir 5/207-208; Sharh as-Sunna 8/97, 102; Ma'alim as-Sunna 3/670; Hashiyat ar-Ramli 2/85; al-Mughni 6/177-178; Majmu' al-Fatawa 30/259, 263; Sharh az-Zarkashi 2/48-49; al-Mubdi' 4/167, 171; Fath al-Bari 4/465; Nayl al-Awtar 5/280-282; al-Ifsah 1/382).

The definition of the calamity (al-ja'iha)

Linguistically, the ja'iha is a hardship that sweeps away wealth, whether a drought year or a sedition; the word derives from the root jawh meaning uprooting and destruction: one says "the calamity swept over them", "it overwhelmed them", and "Allah destroyed his wealth", that is, annihilated it by the calamity. It may come by hail falling from the sky when its volume is so great that its harm multiplies, or by excessive hail or heat until the fruit spoils (as-Sihah, al-Qamus, al-Lisan and al-Misbah, entry jawh).

The calamity, according to the jurists, as Ibn al-Qasim of the Malikis said and most of them followed, is anything that cannot be repelled even if it is known: a heavenly one, such as hail and heat, the simoom wind, snow, rain, locusts, rats, dust and fire, or non-heavenly, such as an army. As for the act of the thief, it is disputed: when the theft is not known, it may be a calamity; when it is known, it is not a calamity according to Ibn al-Qasim and most of the Malikis, because it can be repelled, but it is a calamity according to others (ad-Dasuqi 3/185; Jawahir al-'Iklil 2/63; Kifayat at-Talib with Hashiyat al-'Adawi 2/173; al-Muntaqa 4/232-233).

The Shafi'is and the Hanbalis defined it as everything that removes the fruit or part of it without the tort of a human: wind, rain, snow, hail, ice, lightning, heat, thirst and the like (al-Umm 3/58; Matalib Uli an-Nuha 3/200, 203; Kashshaf al-Qina' 3/285; al-Insaf 5/76-77). Imam Ibn Rushd (may Allah have mercy on him) said: as for the effective causes of calamities, what strikes the fruit from the sky, such as hail, drought, its opposite, and blight, is agreed in the madhhab to be a calamity; as for thirst, there is no disagreement among all: it is a calamity. As for what comes from the doing of humans, some of the companions of Malik saw it as a calamity and some did not; those who saw it as a calamity divided into two: some held the calamity for what is predominant, such as an army, and not for what can be guarded against, like theft; others made everything that strikes the fruit from the humans a calamity, in whatever manner. Whoever restricted it to heavenly things relied on the apparent saying of the Prophet: "Do you see: if Allah withholds the fruit?" (al-Bukhari 2198, 2199). Whoever extended it to the acts of humans likened them to heavenly things; whoever excepted the thief said one can guard against him (Bidayat al-Mujtahid 2/187-188).

The portion of the calamity that is waived

The jurists differed on the amount waived of the calamity. The Malikis mentioned that the goods struck by the calamity fall into three categories. The first: figs, dates, grapes, and what follows their pattern, such as walnuts, almonds and apples; the third is considered in their calamities: if what perished is less than a third of the fruits, nothing is waived for the buyer; if what perished reaches a third, the whole calamity is waived for him. The third was considered because it is the separator between little and much, as in the bequest, by the saying of the Prophet (peace and blessings of Allah be upon him):

The third, and the third is much.Narrated by al-Bukhari (2592) and Muslim (1628)

The second category: vegetables and buried roots whose object is the organ itself, not what comes out of them; two narrations conflict there: one denies the waiving of calamities for them, the other affirms the ruling of the calamity. According to the narration affirming it, is the third considered or not? Ibn al-Qasim narrated from Malik that the calamity is waived for them, little and much, whether it reaches a third or not; in the Mudawwana, from Ibn al-Qasim from Malik, except if what perished is a trifling thing; and 'Ali b. Ziyad narrated from him that only what reaches a third is waived. The third category is the one that follows the pattern of vegetables in that its origin is sold with its fruit, but that of trees in that its fruit is what is sought, such as the cucumber, the watermelon, the squash, the eggplant, the bean and the pea: the third is considered in its calamity according to the narration of Ibn al-Qasim, and this is the view of all the Malikis, the reason being that the object of the sale is the fruit, whose ruling must follow that of the other fruits. Ashhab said in the book of Ibn al-Mawwaz: the melon (maqathi), like greens, has the calamity waived for it, little and much, without regard to the third, for it is a plant with no established root, like the vegetables (al-Muntaqa 4/235; al-Qawanin al-Fiqhiyya; Bidayat al-Mujtahid 2/205).

Ibn Juzayy mentioned that if the goods are of several kinds of fruit, such as grapes and figs, in a single transaction, and the calamity strikes one kind while the rest is safe, the calamity of each kind is considered in itself: if it reaches its third, it is waived; if not, it is not. Asbagh (may Allah have mercy on him) said: the whole is considered: if the calamity reaches a third of the whole, it is waived; otherwise not (Sharh az-Zarqani 5/193, 196). If the seller stipulates, when selling the fruit, that he will not waive the calamity if it occurs, this condition is corrupted according to the Malikis, even for what is like it, and the contract remains valid due to the rarity of the calamity; likewise if the seller stipulates that for himself after the contract. When the condition is corrupted, nothing of the price corresponds to it. Abu al-Hasan said: the contract is corrupted by such a condition, due to the excess of gharar (Sharh al-Kabir of ad-Dasuqi 3/158; Sharh as-Saghir 3/232).

The Hanbalis and ash-Shafi'i in his earlier opinion held the waiving of calamities in fruits. The Hanbalis said: it applies to the little and the much, except the trifling thing to which no attention is paid: if something whose value is out of the ordinary perishes, its equivalent is waived from the price; if all of it perishes, the contract lapses and the buyer recovers the whole price. In another narration: what counts as less than a third is part of the buyer's guarantee, nothing is waived for the seller, and a third of the amount (or of the value) is considered; if all or more than a third perished, he recovers the value of all that perished (al-Mughni 6/179; Rawdat at-Talibin 3/470-471; al-Umm 3/56-57). The Hanafis and ash-Shafi'i in his sounder, later opinion held that the fruits sold, after the leaving of the space, fall within the buyer's guarantee and that waiving the calamity is not obligatory, though recommended. Ash-Shafi'i (may Allah have mercy on him) said: if a man buys the fruit and seizes it, then a calamity strikes it, whether before or after it dried, so long as he has not found it, and whether the calamity struck a single fruit or all the wealth, only one of two views is possible: either, at the time of seizure, it was known that he would leave it until the plucking, and he is like one who seized partially, like the man who buys food by measure and part of it perishes before he seizes it, so he guarantees only what he seized; or, when he seized the fruit, he had full disposal of it, able to cut it or leave it: what perished in his hands perished from his wealth, not from the seller's. Anything beyond this meaning cannot be said: to say the seller guarantees a third if a calamity strikes it, or more, or less than a third, is impossible, for he bought it in a single sale and seized it in a single seizure (al-Bunaya 6/244; Fath al-Qadir 5/102; al-Mabsut 13/91; Rawdat at-Talibin 3/470-471; al-Umm 3/56-57; al-Wajiz 1/151; Bidayat al-Mujtahid 2/186).

The summary of what the scholars said on this is restricted to three opinions. The first: waiving the calamity absolutely, whether it exceeds a third or falls short of it; this is the madhhab of the Hanbalis and of ash-Shafi'i in the earlier opinion, in addition to what was mentioned of the Malikis for the third and beyond. Their proof is the hadith of Jabir (may Allah be pleased with him):

Whoever sells fruit and a calamity strikes it, let him take nothing from his brother; why would one of you take his brother's property?Narrated by Muslim (1554)

and the report that the Messenger of Allah ordered the waiving of calamity losses (an authentic hadith, mentioned above), and the qiyas of resemblance: it is a sold item in which a right of completion remains for the seller, the proof being the watering owed until it is complete; its guarantee must therefore fall upon him, like all sales in which the right of completion remains. The difference from other sales is that this sale was enacted in the Shari'a while the goods are not yet complete, as if it were excepted from the prohibition of selling what has not been created. The second opinion is the absence of waiving the calamity absolutely: this is the view of Abu Hanifa and ash-Shafi'i in the later opinion. They argued by likening this sale to other sales, and that the leaving of the space in this sale is the taking of possession, it being agreed that the guarantee of sales after possession belongs to the buyer; and by way of audition as well, the hadith of Abu Sa'id al-Khudri cited above: "Give charity on his behalf", then: "Take what you find; you have nothing but that" (Muslim 1556). They said: the Prophet did not rule the calamity; his command to give charity on his behalf and to his creditors to take what they found does not prove the obligation of waiving: had it been waived, he would not have needed to command the charity and the taking; the command is therefore carried upon recommendation, or upon what was sold before ripeness appeared (Bidayat al-Mujtahid 2/140, 144; al-Umm 3/58; Nayl al-Awtar 5/281). The third opinion is the distinction: the third and what exceeds it is waived, and less than a third is not; this is the view of the Malikis and a narration among the Hanbalis, by the Prophet's saying: "The third, and the third is much" (takhrij mentioned above).

Ibn Rushd said: the third chapter concerns the amount waived; for fruits, the amount requiring the waiving of the calamity is the third; for vegetables, it is said: little and much, and it is said: the third. Ibn al-Qasim considers the third of the fruit by measure, while Ashhab considers the third of the value: if, according to Ashhab, what is worth a third of the measure perishes from the fruit, a third of the price is waived for him, whether or not there is a third by measure. As for Ibn al-Qasim, if a third of the measure perishes: if it is a single species whose portions are of equal value, a third is deducted from the price; if the fruits are of many kinds of differing value, or portions of differing value, the value of the lost third is reckoned against the value of the whole, and that amount is deducted from the price. There is thus a case in which only the measure is considered, where the value is equal in the parts and portions of the fruit, and a case in which both are considered, where the value differs. The Malikis, in justifying their resort to estimation in waiving calamities even though the hadith concerning it is absolute, argue that the little is known, by the judgment of custom, to differ from the much: since the little perishes from every fruit, it is as if the buyer had entered upon this condition by custom, without entering upon it by words; moreover, the calamity upon which the ruling is suspended implies the distinction between little and much.

Selling food before receiving it

Imam an-Nawawi (may Allah have mercy on him) said: as for the prohibition of selling mu'awama, which is the sale of years, its meaning is selling the fruit of a tree for two or three years or more: it is called the sale of mu'awama or the sale of years; it is void by consensus, the consensus being narrated by Ibn al-Mundhir and others, by these hadiths and because it is a sale of gharar: a sale of a non-existent, unknown thing, impossible to deliver and not owned by the contracting party (Sharh Sahih Muslim 10/193). In al-Majmu' it is said: the sale of the non-existent is void by consensus; Ibn al-Mundhir and others narrated the consensus of the Muslims on the invalidity of selling fruit for two years and the like of that (al-Majmu' 9/245).

The people of knowledge agreed that whoever buys food may not sell it before receiving it, by the saying of the Prophet (peace and blessings of Allah be upon him):

Whoever buys food, let him not sell it until he has received it; in a narration: until he has taken it in hand.Narrated by al-Bukhari (2025) and Muslim (1526)

Tawus reported from Ibn 'Abbas (may Allah be pleased with him) that the Messenger of Allah forbade a man to sell food before he had received it. I said to Ibn 'Abbas: how is that? He said: that is dirhams for dirhams, the food being deferred. Al-Hafiz Ibn Hajar said in Fath al-Bari (4/349-350): its meaning is that Ibn 'Abbas was asked about the cause of this prohibition and answered that, if the buyer sells it before possession and the goods remain in the seller's hand, it is as if he sold dirhams for dirhams; what occurs in the narration of Sufyan, from Ibn Tawus in Muslim, confirms this: Tawus said: I said to Ibn 'Abbas: do you not see them selling gold for deferred food? If one buys food for one hundred dinars, pays them to the seller, and does not take the goods, then sells the food to another for one hundred and twenty dinars and takes the price while the food is still in the seller's hand, it is as if he sold one hundred dinars for one hundred and twenty; on this interpretation the prohibition would not be specific to food, and that is why Ibn 'Abbas said: I do not think there is anything except its like. The hadith of Zayd b. Thabit supports it: the Messenger of Allah forbade selling goods where they are bought until the merchants carry them to their loads (narrated by Abu Dawud, authenticated by Ibn Hibban). The significance of the proof is that the prohibition was expressed until the receipt of the goods: once he has received it, selling is permitted.

Salim reported from his father (may Allah be pleased with him): I saw those who bought food by hazard (mujazafa) being forbidden, in the time of the Messenger of Allah, to sell it until they had carried it to their loads (al-Bukhari 2024). 'Abdallah b. Dinar said: I heard Ibn 'Umar (may Allah be pleased with him) report that the Prophet said: "Whoever buys food, let him not sell it until he has taken it in hand" (al-Bukhari 2026; Muslim 1526). In a narration: "Whoever buys food, let him not sell it until he has received it and taken it in hand" (Muslim 1526). Taking possession and receiving are the same, and food sold by measure or weight is only considered possessed by measure or weight: this is what the scholars do not disagree upon. Ibn 'Abd al-Barr said: the scholars did not differ that all food and condiments that are measured or weighed may not be sold by the one who bought them by measure or weight until he has taken them as a measure or weight (al-Istidhkar 6/372; at-Tamhid 13/325). Ibn Battal said: the scholars agreed that everything measured or weighed of food, whether a condiment or not, as well as condiments, salt, vegetables, and the top of the radish containing edible oil, may not be sold before taking possession (Sharh Sahih al-Bukhari 6/262). Ibn Qudama said: Ibn al-Mundhir reported that the people of knowledge agreed that whoever buys food has no right to sell it until he has received it (al-Mughni 4/88). Al-Khattabi said: the people of knowledge agreed that food may not be sold before taking possession, and they differed on what goes beyond it (Ma'alim as-Sunan 3/115). Ibn Rushd said: as for selling food before taking possession, the scholars are agreed on forbidding it, except what is reported from 'Uthman al-Batti; their agreement rests on the establishment of the prophetic prohibition in the hadith of Malik, from Nafi', from Ibn 'Umar (Bidayat al-Mujtahid 2/108). Ibn Hubayra said: they agreed that food bought by measure, weight or count may not be sold or exchanged before the first taking of possession, which is a condition of the validity of this sale (al-Ifsah 1/384).

The cause of prohibiting the sale of goods before their possession is that the seller guarantees them so long as the buyer has not seized them: if they perish, the loss is upon him, not upon the buyer. If the buyer sells them in this state and profits, he profits from something whose risk of loss he has not borne; and the Prophet forbade profiting from what one has not guaranteed. The buyer who sells before possession resembles the one who hands a sum of money to another to receive more in return, but scheming to achieve his aim by inserting the goods between the two contracts, which resembles riba. Ibn 'Abbas grasped this when asked about its cause, as al-Bukhari narrated from Tawus and Ibn 'Abbas. Ash-Shawkani said: this reasoning is the best of what the prohibition has been explained by, for the Companions know the aims of the Messenger better than anyone; and there is no doubt that the prohibition of every disposal before possession makes no distinction between what involves compensation and what involves none: attaching the latter to sales is invalid, and the mere fact that the name of disposal applies to all does not, for one versed in the principles, justify the qiyas (Nayl al-Awtar 5/259).

Al-'Ayni (may Allah have mercy on him) said: his saying, "I said to Ibn 'Abbas", in the previous hadith, is Tawus's; his saying, "how is that", means: what is the state of this sale, that it should be forbidden? And his answer: that sale would be dirhams for dirhams, the food being absent, that is, deferred to a term; the meaning is that one buys food for a dirham at a term, then sells it, to the seller or to another, before seizing it, for two dirhams for example: this is not permitted, for in effect it is the sale of a dirham for two dirhams, the food being absent, as if he sold the dirham he spent on the food for two dirhams: it is riba, the sale of an absent thing for an immediate one, which is invalid. Ibn at-Tin said: Ibn 'Abbas's saying, "dirhams for dirhams", was interpreted by the scholars of the early generations thus: buying food for one hundred [dirhams] at a term and selling it before possession for one hundred and twenty, which is not permitted. It has also been said: its meaning is selling it to another and assigning it to him by hawala ('Umdat al-Qari 11/250).

The scholars then differed on other than food: is its sale before possession permitted? The Hanafis, the Shafi'is and Ahmad in one narration held that nothing at all, whether movable or immovable such as land, like food, may validly be sold before its possession, except Abu Hanifa and Abu Yusuf: the sale of houses and land before possession is permitted according to them; and it is not permitted to dispose of it by pledge, gift, charity or hire according to all of them, except Muhammad b. al-Hasan, who permits gift, charity and pledge before taking possession. If the goods perish before possession, they are within the seller's guarantee, and the buyer may not dispose of them before. They supported this by the Prophet's saying: "Whoever buys food, let him not sell it until he has received it", and Ibn 'Abbas said: "and I do not think anything except its like" (Muslim 1525). They said: the Prophet's restriction to food did not prevent Ibn 'Abbas from bringing other goods into this prohibition. 'Abdallah b. 'Isma reported that Hakim b. Hizam (may Allah be pleased with him) said: O Messenger of Allah, I make many sales; what is lawful for me of what is forbidden to me? He said: "Do not sell what you have not taken" (narrated by Imam Ahmad in al-Musnad 15351 and by at-Tabarani in al-Kabir 3101, authentic hadith).

Ibn 'Umar (may Allah be pleased with him) said: I bought oil in the market; when I had secured it, a man met me and offered me a good profit on it, and I wanted to conclude the deal with him; a man seized my arm from behind; I turned and it was Zayd b. Thabit, who said: do not sell it where you bought it until you carry it to your caravan, for the Messenger of Allah forbade selling goods where they are bought until the merchants carry them to their loads (hasan hadith: Abu Dawud 3499; ad-Daraqutni 3/13; al-Hakim in al-Mustadrak 2271). Ibn al-Qayyim said in I'lam al-Muwaqqi'in (3/149): he forbade selling goods where they are bought until they are moved from their place, and that is only that it is a means to the seller renouncing his sale and refusing to complete it when the buyer has profited by it: greed beguiles him and his soul craves confirmation; the Prophet reinforced this meaning by forbidding profiting from what one has not guaranteed, and this is among the beauties of the Shari'a and the finest door for closing pretexts. Ibn 'Umar also said: I heard the Messenger of Allah forbid selling goods where they are bought until the buyer carries them to his load, and he would send men who forbade us that (at-Tahawi in Sharh Mushkil al-Athar 8/188; al-Hakim in al-Mustadrak 2270). These hadiths embrace food and other goods, the prohibition of selling before possession having come regarding them.

Also seen in it is the gharar of the rescission of the first contract should the goods perish before possession: it then becomes clear that he sold another's property without his permission, which corrupts the contract; and the Sihah (the dictionary of the language) reports that he forbade the sale of gharar, gharar being what is hidden from your knowledge. As for the argument of Abu Hanifa and Abu Yusuf on the lawfulness of selling real estate before possession, it rests on the pillar of the sale having taken place in its place, and on the cause of the prohibition, namely the gharar of rescission by perishing, being absent: the perishing of real estate is rare, and the rare is not taken into account, fiqh not being built upon it; so lawfulness is not prevented. This perishing is only conceivable if the property becomes sea or the like, even were it on the seashore; but elevated property may not be sold before taking possession (al-Mabsut 13/8; Bada'i' as-Sana'i' 5/238; Sharh Mushkil al-Athar 4/39-40; Sharh Fath al-Qadir 6/510-513; al-Jawhara an-Nayyira 3/109-111; al-Lubab 1/395-396; Hashiyat Ibn 'Abidin 4/42).

The Malikis said: every determined sale to which no right of completion by measure or weight attaches may be sold before taking possession, whatever category it belongs to: goods, animals, measured or weighed things, except exchanged food; if the buyer is prevented from taking possession while able, the loss is his, and if the goods perish before that, they are within the buyer's guarantee, by the Prophet's saying: "Whoever buys food, let him not sell it until he has taken it in hand": the Prophet forbade the sale of food before possession specifically, which proves that what is not food is not like food; otherwise the specification of food would have no benefit. They agreed that whoever buys a slave girl and frees her in that state, before taking possession of her, has a valid manumission, and he may also sell her before taking possession of her (at-Tamhid 13/332; Bidayat al-Mujtahid 2/108; Hashiyat ad-Dasuqi 3/243, 252; al-Majmu' 9/215, 258; Sharh Sahih Muslim 10/169-170; Tarh at-Tathrib 6/97, 100). The Hanbalis in the madhhab said: everything sold by measure, weight, count or capacity (dhar') may not be disposed of by sale, gift, hire, pledge or hawala until he has received it, by the Prophet's saying: "Whoever buys food, let him not sell it until he has received it". If the goods perish before their transport, they are within the seller's guarantee and the buyer turns back against him; what is neither measured nor weighed may be sold before taking possession, and if it perishes before that, it is within the buyer's guarantee, by the Prophet's saying: "The yield goes with the guarantee": its increase is the buyer's and its guarantee upon him, so long as the seller did not prevent him from seizing it; if he prevented him until it perished, he guarantees it as a usurpation (al-Mughni 4/91; al-Kafi 2/27; al-Mubdi' 4/118; Matalib Uli an-Nuha 3/143; Sharh az-Zarkashi 2/53; Sharh Muntaha al-Iradat 3/230, 237; Kashshaf al-Qina' 3/280, 285; Sharh Sahih Muslim 10/169-170; Tarh at-Tathrib 6/97, 100).

Ibn Qudama said: when the sale is upon a measured, weighed or counted thing and it perishes before seizure, it belongs to the seller. The apparent wording of al-Khiraqi indicates that the measured, the weighed and the counted do not enter the buyer's guarantee except by his seizure, whether it is a determined thing, like a bale, or undetermined, like a qafiz: it is the apparent wording of Ahmad, and Ishaq said the like. It was reported from 'Uthman b. 'Affan, Sa'id b. al-Musayyib, al-Hasan, al-Hakam and Hammad b. Abi Sulayman that everything sold by measure or weight may not be sold before seizure, and that what is neither measured nor weighed may be sold before it. Al-Qadi and his companions said: the measured, the weighed and the counted mean what of it is not determined, such as a qafiz of cotton, a ritl of curd, and a measure of oil drawn from a jar; as for the determined thing, it enters the buyer's guarantee, like the bale sold without naming a measure. What supports their view was transmitted from Ahmad: in the narration of Abu al-Harith, concerning a man who bought food and sought someone to carry it, he returned and the food had burned: it belongs to the buyer; and he argued by the hadith of Ibn 'Umar: "What the transaction reaches alive and whole belongs to the buyer" (al-Bukhari 2126; Muslim 1526). Al-Jawzajani reported from him, concerning one who buys a bale in a ship without naming a measure, that there is no harm in his sharing in the cargo and selling what he wishes, except if measuring takes place between them: then he does not leave until it is measured for him. Malik said the like: food sold by measure or weight may not be sold again before seizure; what is sold by hazard, or what is not food sold by measure or weight, may be sold before. The reason is what al-Awza'i narrated, from az-Zuhri, from Hamza b. 'Abdallah b. 'Umar, that he heard 'Abdallah b. 'Umar say: the sunna has passed that what the transaction reaches alive and whole belongs to the buyer; al-Bukhari reported it from Ibn 'Umar in suspended form (mu'allaq). The Companion's saying, "the sunna has passed", implies the sunna of the Prophet (peace and blessings of Allah be upon him); and the determined goods, having no right of completion, belong to the buyer, like the measured and the weighed.

It was transmitted from Ahmad that what is eaten may not be sold before seizure, whether measured, weighed or not, which implies that food alone does not enter the buyer's guarantee until he seizes it: at-Tirmidhi reported from Ahmad that he relaxed the sale, before seizure, of what is neither measured nor weighed and is neither eaten nor drunk. Al-Athram said: I asked Abu 'Abdallah about his saying, "he forbade profiting from what one has not guaranteed"; he said: this concerns food and its like among what is eaten or drunk: it is not sold until he seizes it. Ibn 'Abd al-Barr said: the soundest view reported from Ahmad b. Hanbal (may Allah have mercy on him) is that what is prevented from being sold before seizure is food, for the Prophet forbade the sale of food before seizure, and its understanding permits the sale of other than it before. Ibn 'Umar reported: I saw those who bought food by hazard being forbidden, in the time of the Messenger of Allah, to sell it until they had carried it to their loads: a text on the sale of the determined thing, the generality of the saying, "Whoever buys food, let him not sell it until he has received it", being established by the two collections. And Muslim reported from Ibn 'Umar: we used to buy food from the caravans by hazard, and the Messenger of Allah forbade us to sell it until we had moved it from its place. Ibn al-Mundhir said: the people of knowledge agreed that whoever buys food has no right to sell it until he has received it. If the goods have entered the buyer's guarantee, selling them and disposing of them is permitted, as after possession: this proves the generalization of the prohibition to all food, together with the specific mention of the sale by hazard, contrary to the view of al-Qadi and his companions; the understanding of the hadith indicates that what is not food differs from it. As for al-Khiraqi's view: the food whose sale is forbidden before seizure is hardly ever without being measured, weighed or counted, so the attachment of the ruling to those modes is like the attachment of riba al-fadl to them; it may also be that he meant the measured, the weighed and the counted among food whose prohibition of sale came by text: this is the most apparent and finest of the arguments.

Total destruction of the goods before taking possession

The jurists then differed when the goods perish before their possession: is the loss within the seller's guarantee or the buyer's? The loss is either total or partial, before or after possession, each category having its rulings; and it may occur by a heavenly calamity, by the act of the buyer, the seller, or a third party. When the goods perish entirely before possession by a heavenly calamity, or by the act of the goods itself, when it is an animal that killed itself as the Hanafis say, the sale is rescinded according to the majority, namely the Hanafis, the Malikis and the Shafi'is, and according to a narration reported from Ahmad, and the price falls upon the buyer, even if he released him from the guarantee, which produces no effect according to the Shafi'is; the Prophet (peace and blessings of Allah be upon him) said:

No salaf along with a sale, nor two conditions in a sale, nor profit on what you have not guaranteed, nor sale of what is not with you.Hasan sahih hadith, narrated by Abu Dawud (3504), at-Tirmidhi (1234) and an-Nasa'i (4630)

Its meaning is profiting from what is sold before seizure, the goods, before the buyer seizes them, being within the seller's guarantee. Had the sale remained, the buyer would be demanded the price; and when he is demanded it, he is demanded the delivery of the goods, of which he is incapable: the demand therefore becomes impossible, and the remaining of the sale has no benefit. When the sale is rescinded, the price falls, for its rescission is its removal from the origin, as if it never was. The Hanbalis in the madhhab, for the measured, the weighed and what was sold by sight or upon a prior description, adopted the view of the majority; for other than them, what perishes before possession is at the buyer's expense, except if the seller prevented him from seizing it: the guarantee is then upon him, like that of the usurper; they argued by the hadith: "The yield goes with the guarantee" (Bada'i' as-Sana'i' 5/238; Hashiyat Ibn 'Abidin 4/42; Hashiyat ad-Dasuqi 3/243, 252; Mughni al-Muhtaj 2/65; Kashshaf al-Qina' 3/282; al-Mughni 6/181-182). As for loss by the act of the seller, its ruling is that of loss by heavenly calamity according to the Hanafis and the Shafi'is (Bada'i' as-Sana'i' 5/238; Hashiyat Ibn 'Abidin 4/42; Mughni al-Muhtaj 2/67).

The Hanbalis said: if the goods are measured, weighed, or the like, the buyer has the choice: if he wishes, he rescinds the sale and takes back the price he paid, if he paid, and the seller claims from the destroyer its substitute, that is, its like if the thing has a like, otherwise its value; for when the buyer rescinds, ownership returns to the seller, who is entitled to claim from the destroyer. If he wishes, he confirms the sale, pays the price to the seller if he has not paid it, and himself claims from the destroyer, whether the seller or a third party, the like or the value; for destruction is like a defect, and it occurred in a place where the seller's guarantee is binding: the buyer therefore has the option, as with a defect in the goods. It differs from the heavenly calamity in that the latter produced no cause of guarantee, unlike destruction by a human, which produces guarantee by the substitute, while the contract produces guarantee by the price: the buyer therefore chooses which of the two guarantees to impose. If the goods are neither measured nor weighed, the sale is not rescinded according to them, and the buyer claims the value from the seller (Kashshaf al-Qina' 3/283), a view rejected among the Shafi'is.

Ibn Qudama (may Allah have mercy on him) said: if the goods perish before seizure by a heavenly calamity, the contract lapses and the buyer returns with the price; if it perishes by the act of the buyer, the price remains fixed upon him, which is like taking possession, for he disposed of it. If a third party destroyed it, the contract does not lapse according to the analogy of his view on the calamity, and the buyer has the option between rescinding and returning with the price, and keeping the contract and claiming the like from the destroyer if the thing has a like; ash-Shafi'i said this, and I know of no opponent. If the seller destroyed it, our companions say the ruling is that of destruction by a third party, for he destroyed what he guarantees its like of, as if a third party had destroyed it; ash-Shafi'i said: the contract is rescinded and the buyer returns with the price only, for it perished and the seller thus guarantees it, so the return for the price is like the loss by the act of Allah. Our companions distinguished the two: when the loss is by the act of Allah, there is no cause of guarantee besides the contract, unlike destruction, which produces guarantee by the like, while the contract produces guarantee by the price; the option therefore belongs to the buyer. If the goods become defective or partially perish in the seller's hand by a heavenly event, the buyer may choose between accepting it deficient with nothing due to him, and rescinding the contract and returning with the price: if he accepts it defective, it is as if he bought it defective knowing its defect, and he deserves nothing for the defect; if he rescinds, he has no more than the price, for had the goods perished entirely he would have had no more than the price. If the defect or partial loss is by the act of the buyer, he has no right of rescission, for he destroyed his own property and has no claim against anyone. If it is by the act of the seller, our companions hold the option between rescission and claiming compensation, while the analogy of ash-Shafi'i's view makes it like the loss by the act of Allah; and if a third party did it, the buyer has the option between rescinding and claiming the price, and taking the goods and claiming from the destroyer (al-Mughni 4/87, 91; al-Kafi 2/27; al-Mubdi' 4/118; Matalib Uli an-Nuha 3/143; Sharh az-Zarkashi 2/53; Sharh Muntaha al-Iradat 3/230, 237; Kashshaf al-Qina' 3/280, 285; Sharh Sahih Muslim 10/169-170; Tarh at-Tathrib 6/97, 100).

The Malikis distinguished a definitive sale from a sale with an option, and intention from accident. If the sale is definitive, the seller's destruction of the goods causes loss to the buyer, whether the guarantee falls upon the destroyer or the seller, and whether the destruction is intentional or accidental (Hashiyat ad-Dasuqi 3/243, 252; Bilghat as-Salik 2/141-143). If the sale carries an option for the seller, the sale is rescinded, whether the destruction is intentional or accidental. If the option belongs to the buyer and the seller destroyed the goods intentionally, he guarantees the buyer the greater of the price and the value, for the buyer may choose the return if the price is greater, or the confirmation if the value is greater. If the seller's destruction is accidental, the sale is rescinded (Hashiyat ad-Dasuqi 3/105). When the whole of the goods perishes by the act of the buyer, the sale is not rescinded and the price is upon him, for by destroying it he seized the whole of the goods: he cannot destroy it except after his hand is established upon it, which is the meaning of possession; the price is therefore fixed upon him, whether the sale is definitive or with an option, according to the Shafi'is and the Hanbalis. The Hanafis and the Malikis restricted the previous ruling to the definitive sale, or to one with an option for the buyer, for the buyer's option does not prevent, without disagreement, the sale from leaving the seller's ownership: it therefore does not prevent the validity of seizure nor the fixing of the price. If the sale carries an option for the seller, the Hanafis hold that he guarantees its like if it has a like, and its value if not, for the seller's option prevents, without disagreement, the goods from leaving his ownership: they remain on the status of his property, which is guaranteed by like or value. The Malikis held that the buyer guarantees the greater of the price and the value: if the price is greater, the seller may confirm the sale during the period of the option; if the value is greater than the price, the seller may rescind it by virtue of his option and take the value; no difference is made between intentional and accidental destruction, unless the buyer swears that it was lost without his negligence or perished without his cause: he then guarantees the price without regard to the value; and that is when the value is greater than the price, for if the price is greater than or equal to the value, he guarantees the price without an oath (Bada'i' as-Sana'i' 5/238; Hashiyat Ibn 'Abidin 4/42; Hashiyat ad-Dasuqi 3/243, 252; Bilghat as-Salik 3/141-143; Mughni al-Muhtaj 2/66; Kashshaf al-Qina' 3/280, 284; al-Mughni 6/181-182).

If the loss is by the act of a third party, he guarantees it without disagreement among the jurists, whether the destruction is intentional or accidental, for he destroyed property owned by another without his permission and has no power over it: he is therefore liable for its substitute, that is, its like if it has one, otherwise its value. The majority of jurists held that the buyer has the choice: if he wishes, he rescinds the sale and takes back the price he paid, if he paid, and the seller claims the like or the value from the destroyer; for upon rescission ownership returns to the seller, who pursues the wrongdoer. If he wishes, he confirms the sale, pays the price to the seller if he has not paid it, and himself claims the compensation from the destroyer; destruction is like a defect occurring in a place where the seller's guarantee is binding: the option therefore belongs to him, unlike the heavenly calamity, which produced no cause of guarantee, unlike destruction by a human, which produces guarantee by the substitute, while the contract produces guarantee by the price: the buyer therefore chooses which of the two to impose. If he rescinds, the goods return to the seller's ownership, who follows the wrongdoer and guarantees the buyer; if he chooses the sale, he pursues the wrongdoer for the guarantee, and the seller pursues him for the price. The Hanbalis adopted the view of the majority if the goods are measured, weighed, or the like; otherwise it perishes at the buyer's expense, and the destroyer is pursued for the guarantee (Bada'i' as-Sana'i' 5/238-239; Hashiyat Ibn 'Abidin 4/42; Hashiyat ad-Dasuqi 3/243, 252; Sharh Mukhtasar Khalil 5/159-162; Minh al-Jalil 5/236 ff.; Mughni al-Muhtaj 2/67; Kashshaf al-Qina' 3/282-283; al-Mughni 6/181-182).

Partial destruction of the goods before taking possession

When part of the goods perishes before possession by a heavenly calamity, the buyer has the choice between rescinding the contract and returning with the price, and accepting it deficient with nothing due to him, by virtue of his power of rescission: this is the madhhab of the Shafi'is, and of the Hanbalis when the goods are measured or the like; what is not measured is at the buyer's expense, both its partial loss and its defect, without rescission (Mughni al-Muhtaj 2/68; Hawashi at-Tuhfa 4/400; Kashshaf al-Qina' 3/282, 243; al-Mughni 6/181-182). The Hanafis distinguished loss producing a diminution of quantity from loss producing a diminution of attribute. Diminution of attribute is everything entering the sale without being named, such as the tree and the building on the land, the limbs of the animal, and the quality of the measured and the weighed: the sale is not rescinded at all and nothing of the price falls upon the buyer, for attributes have no share of the price, unless they are touched by possession or tort: they then become sought. The buyer therefore has the choice: if he wishes, he takes it with the whole price; if he wishes, he leaves it, due to the defect occurring before possession.

As for loss producing a diminution of quantity, when the thing is measured, weighed or counted, the contract is rescinded by the amount perished, and its share of the price falls: every quantity is an object of the contract and corresponds to a share of the price, so the loss of all that is the object of the contract entails the rescission of the sale and the fall of the price, and the loss of part entails rescission and the fall of the price in its proportion, the buyer having the option for the remainder: if he wishes, he takes it with his share of the price; if he wishes, he leaves it, the transaction having been split (Bada'i' as-Sana'i' 5/239-240; Hashiyat Ibn 'Abidin 3/46). The Malikis held that if the remainder after the loss is half or more, the buyer is bound by the remainder with his share of the price and takes back the share of what perished, for the remaining of half is like the remaining of the greater part: this applies to divisible goods. If the goods are a single, indivisible thing, such as a horse, and half or more remains after the loss, the buyer has the choice between returning the goods and taking its price, or holding on to the remainder with his share of the price. If the remainder after the loss is less than half, holding on to it is forbidden: the goods must be returned and the whole price taken, for the sale is disturbed by the loss of the greater part of the goods, and holding on to that remainder would be like concluding a contract for an unknown price, since what belongs to the remainder is not known until the whole is valued. Exception is made for the fungible (mithli), in which holding on to a lesser part is permitted: the buyer has the choice between rescission and holding on to the remainder with his share of the price, for the fungible has a known price counterpart; this comes in the valued (muqawwam) (Hashiyat ad-Dasuqi 3/243, 252; Tahrir al-Mukhtar 3/648, 650; Mawahib al-Jalil 6/336-337).

What constitutes taking possession (al-qabd)

The jurists differed on what accomplishes taking possession, for each kind of sale has its own possession. The Hanafis said: delivery of the goods is leaving the space between the seller and them in a manner enabling their seizure without obstacle; this varies according to the state of the goods, and likewise delivery of the price. In genera, three meanings secure the validity of delivery (al-Bahr ar-Ra'iq 5/332; Hashiyat Ibn 'Abidin 4/561-562; Mukhtasar Ikhtilaf al-'Ulama' 3/34; Sharh Fath al-Qadir 6/297; Majma' ad-Damanat 1/483; Majma' al-Anhar 3/32):

• saying: "I have left the space between you and the goods";
• the goods being present with the buyer in a state enabling the act without hindrance;
• their being separated and not occupied by another's right.

The Malikis said: taking possession of real estate, that is, the land and what is attached to it of building or tree, is accomplished by leaving the space between it and the buyer and enabling him to dispose of it, even if the seller does not remove his belongings, unless it is his dwelling: in the dwelling place, possession is accomplished by evacuating the belongings, the mere leaving of the space not sufficing. Possession of what is not real estate, animals and goods, is accomplished by the custom current among people, such as handing over the garment and the animal's rein, or leading it, or moving it away from the seller's beasts, or the seller's turning away from it (Sharh al-Kabir with Hashiyat ad-Dasuqi 4/235-236; Hashiyat as-Sawi 7/22; Tahrir al-Mukhtar 3/642; Mawahib al-Jalil 6/337-338; at-Taj wa al-Iklil 3/495; Sharh Mukhtasar Khalil 5/158).

The Shafi'is said: possession of real estate, that is, the land, the palm and the buildings, consists of freeing it for the buyer by a statement from the seller indicating it, and enabling him to dispose of it, such as handing him the key, even if he does not dispose of it or enter it, on condition that it is free of the seller's belongings, delivery by custom being suspended on that. Possession of movables, animal or other, is by transferring them and enabling disposal, by what the two shaykhs narrated from Ibn 'Umar (may Allah be pleased with him): the Messenger of Allah said: "Whoever buys food, let him not sell it until he has received it"; and he said: we used to buy food from the caravans by hazard, and the Messenger of Allah forbade us to sell it until we had moved it from its place (al-Bukhari 2017; Muslim 1526); other goods are assimilated to it.

The buyer is entitled to possession of the goods if he paid the price, or if payment was deferred and not yet due, or if the seller delivered them to him; otherwise the seller's permission is necessary, for the seller may withhold the goods as a counterpart of the price if he fears losing it. If the goods are measured, weighed or counted, weighing, measuring or counting is required for the validity of their possession. If the two contracting parties each refuse to deliver first, each wanting the other to deliver, the seller saying: I will not deliver the goods until I receive their price, and the buyer saying the like of the price, the seller is compelled to begin delivery, for the buyer's right lies in the thing and the seller's in liability: what concerns the thing comes first, like the compensation of tort among debts. If the buyer is insolvent of the price, the seller may rescind for non-payment; and the disagreement between lessor and hirer is like that between seller and buyer (Mughni al-Muhtaj 2/537-538; al-Iqna' 2/280; Ihya' 'Ulum ad-Din 2/66; Nihayat al-Muhtaj 4/107, 110; Kanz ar-Raghibin 2/541-543; ad-Dibaj, Sharh al-Minhaj 2/94-95).

The Hanbalis said: possession of the measured is accomplished by measuring, of the weighed by weighing, of the counted by counting, and of the capacity-measured by capacity, by the hadith of 'Uthman b. 'Affan that the Messenger of Allah (peace and blessings of Allah be upon him) said:

When you sell, measure, and when you buy, weigh.Authentic hadith, narrated by Ahmad (444, 560), al-Bayhaqi (5/315) and al-Bazzar (2/33)

and by the hadith: "When you name the measure, measure" (authentic hadith, narrated by Ibn Majah 2230), counting and capacity being assimilated to measure and weight. Possession of gold, silver and jewels is by the hand; that of the animal by taking it by its rein or walking it from its place; what cannot be moved is possessed by leaving the space between it and its buyer, for possession is absolute in the Shari'a and one must refer to custom. This possession requires the presence of the entitled person or his deputy, who stands in his place. The fees of the measurer, the weigher, the counter, the surveyor and the money-changer are upon the one who gives, for a right of completion attaches to him and possession is only accomplished thereby, like the watering owed by the seller of the fruit; as for the transport fee, it is upon the possessor, no right of completion attaching to it. A competent and honest money-changer does not guarantee error, whether he is unpaid or hired, for he is a trustee; if he is not competent, or lacks integrity and fairness, he guarantees for his deception, as if he had acted intentionally (al-Mughni 4/90, 94; al-Kafi 2/29; Sharh az-Zarkashi 2/109-110; Manar as-Sabil 2/42-43).

Selling food before the two measures are poured (as-si'an)

The jurists differed when someone buys food by measure and takes possession of it: may he sell it to another by the same measure as his purchase, or must it be measured a second time? There are two opinions. The first is that of the majority of scholars, namely the Hanafis, the Shafi'is and the Hanbalis: whoever buys food by measure may not sell it to another until he has measured it a second time for his buyer, if he did not see the first measuring, by what Jabir (may Allah be pleased with him) reported:

The Messenger of Allah forbade selling food until the two measures are poured into it: the seller's measure and the buyer's.Hasan hadith, narrated by Ibn Majah (2228)

Al-Bayhaqi and others reported from Abu Hurayra (may Allah be pleased with him): the Prophet (peace and blessings of Allah be upon him) forbade selling food until the two measures are poured into it, the increase then belonging to the seller and the shortfall to him (al-Bayhaqi in al-Kubra 11015; Abu Ya'la in his Musnad 293; at-Tahawi in Sharh Mushkil al-Athar 15/140). Ibn 'Umar (may Allah be pleased with him) was asked about a man who buys food whose measuring he witnessed; he said: no, until the two measures are poured into it (Ibn Abi Shayba 20062). Sa'id b. al-Musayyib said: I heard 'Uthman (may Allah be pleased with him) deliver a sermon from the pulpit, saying: I used to buy dates from a clan of Jews called Banu Qaynuqa' and sell them at a profit; the matter reached the Messenger of Allah and he said: "O 'Uthman, when you buy, weigh, and when you sell, measure" (narrated by Imam Ahmad in his Musnad 444, 560).

These hadiths establish that whoever bought something by measure, took possession of it, then sold it to another, may not suffice with delivering it by the first measure: he must measure it a second time upon his buyer, for these are two contracts each requiring a taking of possession, and a single seizure cannot stand in place of the two: the seizure stands in place of what he bought, not of what he sold, until he resumes the measure upon his buyer. If the buyer witnessed the first measuring and said: take it with this measure I have witnessed, and he took it so, the sale is valid according to the Hanafis in the authentic view and the Hanbalis in the madhhab: he witnessed the measuring and knows it, re-measuring has no meaning, the goods became known by a single measure, and the meaning of delivery was realized; the hadith is therefore carried upon the case where the two transactions coincide. The buyer may then dispose of it, he may not claim a further measuring from the seller, and if he claims a shortfall, his claim is not accepted.

The Shafi'is, the Hanafis in one opinion, and Ahmad in a narration said: it does not suffice, for the Prophet forbade selling food until the two measures are poured into it, and this case falls within it; moreover, he took possession of it without measuring, like one who takes it by hazard; Ibn 'Umar was asked about a man who buys food whose measuring he witnessed, and said: no, until the two measures are poured into it (Ibn Abi Shayba 20062). As for food bought by weight and sold by weight, they differed: the Shafi'is and the Hanbalis in one opinion said the second buyer may take it with the first weighing, for weight does not vary, while measuring is an effort subject to variation; the Hanafis and the Hanbalis in the second opinion said it is only permitted by weighing it a second time, and likewise the closely counted (mutaqarib) according to Abu Hanifa, for it equals the measured and the weighed in the cause of corruption, namely the unknown goods tolerating increase: whoever buys a thousand walnuts and finds more returns the surplus. Abu Yusuf and Muhammad said: selling the counted without recounting is permitted, like the capacity-measured, for it is not measured: it is sold with surplus like the capacity-measured.

The second opinion is that of the Malikis: if he sold it for cash, or in a salam, the first measure suffices; if he sold it on deferred payment, it does not suffice. Ibn Rushd said: the scholars differed concerning one who hands over to another, or sells measured food, and informs the buyer or the deliverer of the measure: may the buyer take it without measuring it, relying on his word? Malik said: that is permitted in salam and in a sale on condition of cash, otherwise it would be feared to belong to riba, for he would only have confirmed his measure in consideration of the price he delays. Abu Hanifa, ash-Shafi'i, ath-Thawri, al-Awza'i and al-Layth said: it is not permitted until the seller measures for the buyer a second time, after measuring for himself in the seller's presence; their proof is that, since the buyer could not sell without measuring, he could not receive except after the seller measured for him: measuring being a condition of the sale, possession is likewise; they argued by the hadith of the two measures, the seller's and the buyer's. They differed when the food perishes in the buyer's hand before the measuring: ash-Shafi'i said the ruling word is the buyer's, and Abu Thawr followed him; Malik said the ruling word is the seller's, for the buyer confirmed him at the time of possession, which rests, in his view, on the sale being valid by self-confirmation (Bidayat al-Mujtahid 2/156-157, 119; al-Mabsut 12/166; Tabyin al-Haqa'iq 4/81-82; al-Bahr ar-Ra'iq 6/128; al-Jawhara an-Nayyira 3/111-112; al-Lubab 1/396; adh-Dhakhira 5/137; Hashiyat Ibn 'Abidin 5/149; Sharh as-Sunna 8/110-111; al-Hawi al-Kabir 5/231; al-Muhadhdhab 1/301-302; Mughni al-Muhtaj 2/541; Hashiyat 'Umayra on Kanz ar-Raghibin 2/547; al-Mughni 4/92-94; Sharh az-Zarkashi 2/109; al-Mubdi' 4/201; Fath al-Bari 4/351; Nayl al-Awtar 5/260).

The sale of the animal whose udder is left unmilked (al-musarra)

The musarra is the animal whose milk was left in the udder unmilked for days, until the udder swells from the gathering of milk, so that its buyer sees it abundant and raises its price on that account; then, after one or two milkings, he realizes that this was not its milk, which decreases every day from its first state (Ta'wil Mukhtalif al-Hadith p. 226; al-Hawi al-Kabir 5/236). The jurists differed concerning one who buys a musarra among the livestock without knowing the tasriya, then learns of it: is this a defect entitling him to return the sale and giving him the option? There are two opinions. The first is that of the majority of jurists, namely the Malikis, the Shafi'is, the Hanbalis, and Abu Yusuf among the Hanafis: it is a defect, and whoever buys it and finds it musarra has the better of the two choices after milking it: if he wishes, he keeps it; if he wishes, he returns it with a sa'. They relied on what Abu Hurayra (may Allah be pleased with him) reported from the Prophet (peace and blessings of Allah be upon him):

Do not leave the camels and sheep in tasriya; whoever buys them afterward has the better of the two choices after milking them: if he wishes, he keeps them; if he wishes, he returns them with a sa' of dates.Narrated by al-Bukhari (2141) and Muslim (1155)

al-Bukhari said: it is mentioned from Abu Salih, Mujahid, al-Walid b. Rabah and Musa b. Yasar, from Abu Hurayra, from the Prophet: "a sa' of dates"; some reported from Ibn Sirin: "a sa' of food", with the option of three days; others reported from Ibn Sirin: "a sa' of dates", without mentioning the three days; the versions mentioning dates are the most numerous. Ibn Mas'ud (may Allah be pleased with him) said: whoever buys a deceived sheep and returns it must return with it a sa' of dates; and the Prophet forbade meeting sales (al-Bukhari 2042).

Abu Hurayra reported that the Messenger of Allah said:

Do not meet the caravans, let none of you sell over his brother's sale, do not practice najsh, let no town dweller sell for a nomad, and do not leave the sheep in tasriya; whoever buys them has the better of the two choices after milking them: if he is pleased, he keeps them; if displeased, he returns them with a sa' of dates.Narrated by al-Bukhari (2043)

The Prophet thus established the option with the return in case of tasriya, which shows it to be an effective defect: it is a deception resembling the other defects, the deception bearing on what varies the price; the return is therefore due, as if the hair of a white sheep (shamta') had been dyed black. The option is only established on condition that the buyer does not know of the tasriya: if he knows it, he has no option according to the Hanbalis, for he bought it knowing the deception, like one who buys an animal with dyed hair knowing that; he entered with insight, and the return is not established, like one who buys a defective thing knowing its defect. The companions of ash-Shafi'i said: the option is established in one sense of the report, for the cessation of the milk has not yet occurred and it may remain as it is, which is not considered consent, like the remarried woman who seeks annulment.

The second opinion is that of Abu Hanifa and Muhammad: tasriya is not a defect and there is no option, for it is not a defect, by agreement that when a man buys a sheep whose milk comes out little, that is not a defect; and deception in what is not a defect does not establish the option, like one who fattens the animal on fodder until its belly swells and the buyer thinks it pregnant; but the seller is liable for the reduction of the defect. They said: the hadith of the musarra ought not entail an application, for it departs from the principles in several ways: it contradicts the Prophet's saying, "the yield goes with the guarantee", a principle established by consensus; it contradicts the prohibition of selling food for deferred food, invalid by consensus; and the principle regarding destroyed things is the value or the like, whereas giving a sa' of dates for milk is neither value nor like.

Those who hold the choice then differed on what is owed when the musarra is returned. The Shafi'is in the madhhab and the Hanbalis said: a sa' of dates must be returned, as the Shari'a determined it, by the hadith of Abu Hurayra (may Allah be pleased with him): the Messenger of Allah said: "Whoever buys sheep in tasriya and milks them: if he is pleased with them, he keeps them; if displeased, their milking is a sa' of dates" (al-Bukhari 2044; Muslim 1524); in Muslim's wording: "he returns them with a sa' of dates, not black ones". The return takes place even if the value of the sa' of dates exceeds that of the musarra, or falls short of the value of the milk, by the generality of the hadith; if the buyer finds no dates, he owes their value at the place of the contract, as if he had destroyed them. The Malikis and some of the Shafi'is held that a sa' of the predominant food of the land is owed, for some narrations say: "he returns with it a sa' of food", and others: "the like of its milk, of wheat", and this reconciles the hadiths. Imam Malik explained the Prophet's specification of dates by their being the predominant food of Medina, and the specification of wheat by its being the predominant food of another land. Abu Yusuf said: he returns the value of the milk, for it is the guarantee of a destroyed thing, estimated at its value like other destroyed things.

The duration of the option in tasriya is three days, by the hadith of Abu Hurayra (may Allah be pleased with him) that the Messenger of Allah said: "Whoever buys a sheep in tasriya has an option of three days over it: if he wishes, he keeps it; if he wishes, he returns it with a sa' of dates" (Muslim 1524). They then differed on whether the return is immediate or after the three days. The view of the Shafi'is and the Hanbalis in one opinion is that the return is immediate, by analogy with the other defects. The Malikis, the Hanbalis in the madhhab, and the Shafi'is in one opinion said it extends over three days, by the apparent hadiths: the milk may vary with the change of place and of fodder; once the three days pass, the tasriya becomes clear and the option is fixed immediately thereafter (Bada'i' as-Sana'i' 5/274; al-Bahr ar-Ra'iq 6/51; Hashiyat Ibn 'Abidin 5/44; Majma' ad-Damanat p. 491; al-Mudawwana 4/300; at-Tamhid 8/204, 217; al-Istidhkar 6/532, 537; Sharh Sahih al-Bukhari by Ibn Battal 6/276, 280; Bidayat al-Mujtahid 2/132; al-Bayan wa at-Tahsil 7/350, 353; Minh al-Jalil 5/161; al-Umm 3/59-60; al-Hawi al-Kabir 5/237, 241; Sharh as-Sunna 8/125, 127; Rawdat at-Talibin 3/119, 124; Sharh Sahih Muslim 10/165, 167; Tarh at-Tathrib 6/58-59; al-Mughni 4/104; al-Kafi 2/80; Sharh az-Zarkashi 2/61, 64; al-Furu' 4/93-99; Kashshaf al-Qina' 3/248-249; 'Aqd al-Jawahir 2/475-477; Fath al-Bari 4/362-363).

The sale by false bidding (an-najsh)

The scholars agreed on the prohibition of najsh, which is increasing the price of goods offered for sale while having no desire to buy them, to beguile others into increasing the price in turn, or to praise the goods for what they do not contain in order to promote them; the seller himself may do it to beguile people who do not know he is its owner. This by the prophetic prohibition of najsh (al-Bukhari 6562; Muslim 1516), and by Abu Hurayra (may Allah be pleased with him), that the Messenger of Allah (peace and blessings of Allah be upon him) said:

Do not meet the caravans for sale, let none of you sell over his brother's sale, do not practice najsh, and let no town dweller sell for a nomad.Narrated by al-Bukhari (2043) and Muslim (1515)

This is because najsh causes a man to pay more than the price: it is deception, and deception is ugly; being adjacent to this sale, it renders it sinful. The Hanafis, some Malikis and some Shafi'is said: this prohibition is carried upon the case where the bidder seeks the goods at its value or more; if he seeks it for less than its value, there is no harm in increasing its price until it reaches the value of the goods: one who sees goods sold below their value and bids until their value is not a sinful najish, for it is a benefit for the Muslim without harming anyone, even without desire for it: that is sincere counsel.

They then differed on the sale itself: is it valid despite the prohibition, or is it a defect leaving the buyer the choice between rescission and confirmation? The majority of jurists, namely the Hanafis, the Shafi'is and the Hanbalis in the madhhab, said the sale is valid and binding despite the prohibition, for najsh is the act of the najish and not of the contracting party: it does not affect the sale; the prohibition concerns a human right and does not corrupt the contract, like meeting the caravans, selling a defective thing and deception, unlike what belongs to Allah's right: the servant's right is repaired by the option or by the increase of the price. The Malikis and the Hanbalis in one opinion said the sale of najsh is not valid, for it is forbidden and the prohibition implies corruption because of the deception: when it is forbidden, it is void, giving predominance to Allah's right in the prohibition.

They then differed on whether the buyer has an option, whether the najsh occurred with the seller's knowledge, by his order and consent, or not. The Hanafis and the Shafi'is in the sounder view said: the buyer has no option, whether the najish acted with the buyer's knowledge and consent or not, for it is not a defect in the goods themselves: it is a deception in the price, the negligence lying with one who buys a thing whose value he does not know; he ought to have guarded himself and brought someone able to discern, if he could not discern himself. Opposite the sounder view among the Shafi'is, if there is consent, the option is due to him. The Malikis said: whoever buys goods by najsh has the option if he learns of it: if he wishes, he keeps it at the price agreed if it still stands; if he wishes, he returns it; and if it was lost in his hands, it is returned at its value on the day of possession, even if less than the price, for najsh is a defect among defects: the Prophet forbade tasriya, then gave the buyer who learns that the animal was musarra the option, without ruling the sale void; and tasriya is known deception and trickery; likewise najsh: the sale is valid in it, and the buyer has the option on that account, by analogy and consideration. This is when the seller is himself the najish, or it occurred by his order, his consent, or because of him; if none of that applies and the najish is an unknown third party, nothing is due from the seller, the sin falling upon the najish, and the sale is valid.

The Hanbalis said: if there is in the sale a lesion (ghabn) beyond custom, the buyer has the option, whether the najsh occurred with the seller's consent or not, for it is a deception of the contracting party: deceived, he has the option, as in meeting the caravans; if the lesion is customary, he has no option (al-Ikhtiyar 2/31; al-Jawhara an-Nayyira 3/94; al-Lubab 1/386; al-Bahr ar-Ra'iq 6/107; Tabyin al-Haqa'iq 4/67; al-Muwatta' 2/684; al-Istidhkar 6/527-528; at-Tamhid 18/193-194; al-Bayan wa at-Tahsil 17/171; al-Fawakih ad-Dawani 2/108; Bidayat al-Mujtahid 2/125; Ikhtilaf al-Hadith 1/154; al-Hawi 5/343; al-Muhadhdhab 1/291; Rawdat at-Talibin 3/76-77; Tarh at-Tathrib 6/56-57; al-Mughni 4/148-149; al-Kafi 2/22; al-Mubdi' 4/80; Majmu' al-Fatawa 29/285; Subul as-Salam 3/19-20; Matalib Uli an-Nuha 3/101; al-Ifsah 1/398).

The broker sharing in the purchase without the seller's knowledge

The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about brokers in an inn, among whom were three who bought from one another's hands, then increased the purchase and divided the profit: is that permitted? He answered: praise be to Allah, it is not permitted for the herald (dallal), who is the seller's agent for the proclamation, to be a partner with one who raises the bid without the seller's knowledge: he would be the one who, in reality, raises and buys, and this is a betrayal of the seller; whoever acts thus would not like to be outbid, and he did not counsel the seller in seeking the increase and ending the proclamation. And if a group conspires upon that, they deserve the severe discretionary punishment (ta'zir) that deters them and their like from such betrayal; among the punishments applicable to them is being prevented from making proclamations until their repentance becomes apparent. Allah knows best (Majmu' al-Fatawa 29/305).

Agreement to refrain from bidding beyond a set price

The Malikis and Ibn Taymiyya explicitly ruled that the agreement to refrain from bidding, when it takes place between one of those present and another who asks him to abstain, is not objectionable. The Malikis said: this holds even in exchange for a worldly thing given to the one who abstains from bidding, as if he said to him: abstain from bidding and you shall have a dinar, or: abstain from bidding and we are partners in the goods; for the way of bidding is open, and one of the two only refrained from outbidding the other. But if the agreement takes place among all those present to abstain from bidding, it is not permitted, because of the harm to the seller. Like the conspiracy of all is the conduct of one whose status is that of a group controlling the auction market, or the chief of the market. The aim of the agreement may be sharing in acquiring the goods below their value in order to divide them, or allocating a goods to each of them so he buys it below its value without the others contesting it: in both cases there is harm to the seller and devaluation of his goods; Allah says:

"And do not diminish the people's goods."

Surat al-A'raf (The Ramparts), 85

When the forbidden agreement occurs, the seller is given the choice between return and confirmation; if the goods perish, he has the greater of the price and the value. In Sharh as-Saghir it is said: it is permitted for one who wants to buy goods at auction to ask some of those present to refrain from bidding so that he buys it; Ibn Rushd said: even in exchange for a thing given to the one who abstains, such as: abstain from bidding and you shall have a dirham, which he pays to him where he abstained. But asking all of them to abstain is not permitted, because of the harm to the seller; like all of them is one who has their status, such as the chief of the market: if it occurs, the seller chooses between return and confirmation, and if it is lost, he has the greater of the price and the value. If he confirms, they have then no right of partnership, and he cannot compel them to the partnership: this is the apparent view (Sharh as-Saghir 6/358).

Ibn Taymiyya was also asked about two merchants who were offered goods for sale, each of them desiring to buy it; one said to the other: buy it in partnership between me and you, his intention being not to outbid him and to have it alone, and he desired the partnership for that; one of them bought it and paid its price from their wealth equally. Is this sale valid in that state, or is it a deception against its seller? He answered: praise be to Allah; if there is in the market one who bids, but one of the two abandons his companion's bidding specifically in order to share with him, this is not forbidden: the way of bidding is open, and one of the two only refrained from outbidding the other; unlike the agreement of the market people not to bid on goods they need, so that the owner sells it below its value and they divide it among themselves: this may harm the owner more than intercepting goods sold at an equal price, for it involves a manifest diminishing of people's goods. Allah knows best (Majmu' al-Fatawa 29/304).

Intercepting incoming caravans (talaqqi ar-rukban)

There is no disagreement among the scholars on the prohibition of intercepting caravans when interception and buying from them is intended, one knows the prohibition, and it harms the people of the town, by the hadith of Abu Hurayra (may Allah be pleased with him):

Do not meet the caravans for sale, let none of you sell over his brother's sale, do not practice najsh, and let no town dweller sell for a nomad.Narrated by al-Bukhari (2043) and Muslim (1515)

'Abdallah b. Mas'ud said: "The Prophet (peace and blessings of Allah be upon him) forbade meeting sales" (al-Bukhari 2056; Muslim 1518). 'Abdallah b. 'Umar (may Allah be pleased with him) reported that the Messenger of Allah said: "Let none of you sell over his brother's sale, and do not meet the goods until they are brought down to the market" (al-Bukhari 2057; Muslim 1518). And by his saying: "Do not meet the incoming goods (al-jalab); whoever meets them and buys from one of them, when his master comes to the market, has the option" (Muslim 1519). Anas b. Malik said: we were forbidden that a town dweller sell for a nomad, even if he were his brother or his father (Muslim 1523). These hadiths contain the prohibition of intercepting caravans to buy their goods before their arrival in the town.

The majority of the jurists of the four schools, namely the Hanafis, the Malikis in the well-known view, the Shafi'is and the Hanbalis in the madhhab, held that the sale is valid despite the prohibition, for the prohibition does not go back to the contract itself and touches nothing of its pillars or conditions: it only aims at warding off harm to the caravans. And by his saying: "whoever meets the incoming goods and buys from them: when his master comes to the market, he has the option" (Muslim 1519), and the option only exists in a valid contract; moreover, the prohibition bears not on a meaning in the sale, but on a kind of deception that can be remedied by establishing the option: it resembles the sale of the musarra. Some Malikis and some Hanbalis, in a narration reported from Ahmad, said: the sale is void and rescinded, by the apparent of the prohibition (Bada'i' as-Sana'i' 5/129; al-Jawhara an-Nayyira 3/95; al-Lubab 1/387; al-'Inaya 14/280; Mawahib al-Jalil 6/210; Sharh al-Kabir with Hashiyat ad-Dasuqi 4/113; at-Taj wa al-Iklil 3/397-398; al-Hawi al-Kabir 5/348-349; al-Muhadhdhab 1/292; Rawdat at-Talibin 3/75-76; Tarh at-Tathrib 6/59-60; al-Mughni 4/152; al-Ifsah 1/398; Sharh az-Zarkashi 2/90; al-Insaf 4/394; Fath al-Bari 4/374).

What is meant by interception (at-talaqqi)

The Hanafis said: the interceptor (mutalaqqi) has two forms. The first: a man of the town hears of a caravan coming with food while the townsfolk are in drought and high prices; he goes out to meet them, buys all their food, brings it into the town and sells it at whatever price he wishes; had he left them until they entered, they would have sold to the townsfolk dispersed, and the townsfolk would have found relief. If the townsfolk suffer no harm by that, he is not reprehended. The second: a man of the town meets them and buys from them at less than the town's price while they do not know its price: the purchase is lawful in its ruling, but disapproved with a prohibitive disapproval, for he deceived them, whether the townsfolk are harmed by it or not. The scope of the prohibition is thus the case where it harms the people of the town or confuses the price for the incomers, because of the gharar and harm in it; otherwise there is no objection (Bada'i' as-Sana'i' 5/129; al-Jawhara an-Nayyira 3/95; al-Lubab 1/387; al-'Inaya 14/280).

The Malikis said: interception is sometimes of the goods entering a town with their owner before reaching their market, or the town if it has no market; sometimes it concerns the owner himself, as appears in the detailed forms that follow.

Is the option immediate?

The generality of the hadith establishing the option is carried upon this, for we know its meaning and purpose: the option attaches to such a meaning, and the Prophet (peace and blessings of Allah be upon him) gave him the option when he comes to the market, from which it is understood that he indicated knowledge of the lesion in the market; otherwise the option would have been his from the moment of the sale. The condition for the establishment of the option for lesion, according to the Hanbalis in the madhhab, is that it be excessive and out of the ordinary, which refers to custom, the Shari'a not having come to delimit it: it is said the lesion is assessed at a third, it is said at a quarter, it is said at a sixth, and it is said the option is established by any lesion, even a small one. If the purchase is at the town's price or more, or the incomers themselves initiated seeking the purchase, knowing or not knowing the town's price, the sounder view among the Shafi'is, which is the Hanbalis' view, is that they have no option, for no lesion befell their sale; one opinion among the Shafi'is gives them the option, considering its obligation from the outset; and a narration from Ahmad gives them the option unconditionally, even without lesion.

As for whether the option is immediate: the Shafi'is in the sounder view said it is immediate, for it is the option of defect: once they are able to rescind after arriving in the town and do not, it lapses; opposite the sounder view, it extends over three days, for it is the legal option (khiyar shar'). The Hanbalis said it is deferred (al-Hawi al-Kabir 5/348-349; al-Muhadhdhab 1/292; Rawdat at-Talibin 3/75-76; Tarh at-Tathrib 6/59-60; al-Mughni 4/153; Sharh az-Zarkashi 2/90-91; al-Mubdi' 4/77; al-Insaf 4/394; Kashshaf al-Qina' 3/244-245; ar-Rawd al-Murbi' 1/562; Nayl al-Awtar 5/267).

The sale by the town dweller to the newcomer (haydar li-badi)

It is said: it is that the town dweller sells his goods to the Bedouin while the people of the town are in drought, and he sells to the desert folk in hope of a high price, because of the harm to the inhabitants; on this interpretation the lam of "let no town dweller sell to a nomad" has the meaning of "from": let no town dweller sell to a nomad. This interpretation is witnessed by what is reported from Abu Yusuf: if Bedouins came to Kufa and wanted to provision from it, harming the people of Kufa, I would prevent them from that; do you not see that the people of the town are prevented from buying for the raid (hukra)? This is more so. This is an interpretation of whoever says the town dweller is the owner and the newcomer the buyer. The Malikis said: it is that the people of the villages sell their goods to the desert folk, or send them to be sold on their behalf. The Shafi'is said: it is that a Bedouin comes to a town with goods he wants to sell at the current price in order to return to his homeland, and a townsman comes to him and says: leave your goods with me so I may sell them for you gradually at a price higher than this. The Hanbalis said: it is that the town dweller goes out to the nomad, having brought the goods, and informs him of the price, saying: I sell it to you. The nomad here is whoever enters the town without being one of its people, whether a Bedouin or from a village or another town.

The scholars differed on the ruling of the sale by the town dweller to the nomad: is it valid despite the prohibition, or void? The majority of the scholars, namely the Hanafis, the Malikis in the well-known view, the Shafi'is and the Hanbalis in one opinion, said the sale is valid despite the prohibition, by the hadith of Abu Hurayra (may Allah be pleased with him): the Messenger of Allah (peace and blessings of Allah be upon him) said: "Do not meet the caravans for sale, let none of you sell over his brother's sale, do not practice najsh, and let no town dweller sell for a nomad" (al-Bukhari 2043; Muslim 1515). Tawus reported from Ibn 'Abbas that the Messenger of Allah forbade meeting the caravans and that a town dweller sell to a nomad; I said to Ibn 'Abbas: what is the meaning of his saying, "a town dweller for a nomad"? He said: that he have no broker (simsar) (al-Bukhari 2050; Muslim 1521). Jabir reported that the Messenger of Allah said: "Let no town dweller sell for a nomad; leave the people, Allah provides for some of them through others" (Muslim 1522). Anas b. Malik said: we were forbidden that a town dweller sell for a nomad, even if he were his brother or his father (Muslim 1523). The proof of validity is that the prohibition bears on a meaning outside the thing forbidden: a meaning attached to the very object of the contract, namely the regard of the townsfolk, for the purpose of bringing ease; it is therefore like intercepting caravans with respect to the rights of those who bring: the sale is prohibited and valid.

The Hanbalis in the madhhab and some Malikis, such as Ibn al-Qasim in one of his two opinions, and Asbagh, according to what is narrated from Malik, held that the sale is prohibited and not valid, whether the contracting parties consent or not: the Prophet forbade it, and the prohibition implies the corruption of what is forbidden; moreover, the harm cannot be prevented, for it comes from an unspecified human. From Ahmad it is reported that it is disapproved and not prohibited; and from him also that it is permitted, and that the prohibition was specific to the beginning of Islam, because of the hardship they then endured.

The scholars, however, conditioned the prohibition by conditions differing from one school to another. The Hanafis said: it is disapproved with prohibitive disapproval when the people of the town are in drought and need, that is, necessity, and he sells to their detriment in hope of the high price; otherwise there is no objection, the harm being absent. It is also said: it is that the town-dwelling rural broker prevents the other from selling and says to him: do not sell, I know it better than you; the other entrusts him, and he sells and sells dear, whereas had he left him to sell himself, he would have sold at a lower price. The Malikis said: it is prohibited for the town dweller to sell the goods, even for trade, of a camel traveler ('amudi) who came to the town and whose price is not known there, when the sale is to a town dweller; that is forbidden by the prophetic prohibition, unlike the town dweller selling to a Bedouin like himself, which is permitted, for the Bedouin does not ignore the prices of these goods and takes them only at their price, whether he buys them from a town dweller or a Bedouin, so that the town dweller's sale to him is like a Bedouin's sale to a Bedouin; or if the traveler knows the price of his goods, the town dweller may undertake to sell them for him. The reason is that the prohibition aims at selling to people cheaply, and this cause only exists when they are ignorant of the prices; knowing them, they sell only at their value, like the town dweller: the town dweller's sale is then like theirs. It is likewise prohibited to send the goods to a brother living in the villages without coming with them to sell to him.

The Shafi'is said: the prohibition of the sale by the town dweller to the nomad has conditions. The first: that he know the prohibition, a condition common to all prohibitions. The second: that the goods brought be among those whose need is general, such as foods; what is rarely needed does not fall within the prohibition. The third: that selling those goods make abundance appear in the town; if it does not appear, because of the town's size, the smallness of the quantity, or general abundance and low prices, there are two opinions, the closer to the hadith being the prohibition. The fourth: that the town dweller offer those goods to the Bedouin and invite him to them; if it is the Bedouin who asks him for a gradual sale, or if he intends settling in the town to sell it so, and the townsman asks him to delegate the sale to him, there is no objection, for he harms no one, and the owner cannot be prevented from it. If the Bedouin consults the townsman about what in which he has a share: should he direct him to storing and gradual sale? Two opinions: it is obligatory for him to direct him to it, as an obligation of counsel; or he does not direct him to it, so as not to increase the pressure on the people. If the townsman sells to the Bedouin while the conditions of prohibition are met, he is sinful and the sale is valid; the sin falls upon the townsman, not the Bedouin, and the buyer has no option.

The Hanbalis in the madhhab said: five conditions are required for invalidity. The first: that the town dweller have sought out the nomad to undertake selling for him, for if the nomad sought him out, the town dweller has no effect on the lack of ease. The second: that the nomad be ignorant of the price, for if he knows it, the town dweller does not increase him beyond what he has: the nomad knowing the price, there is no prohibition. The third: that he have brought the goods to sell, for if he came to store them and the town dweller sought him out and urged him to sell, that is bringing ease, not restriction. The fourth: that the nomad have come to sell his goods at the day's price, for if he does not go elsewhere, he is not a nomad; and that at the day's price, for if he sought a known price, the prevention would be from him, not from the town dweller: this is the madhhab; from Ahmad likewise the ruling of one who sends his goods to the town dweller to sell them, which is the ruling of the nomad coming to sell them. The fifth: that the people have need of his goods and hardship in deferring its sale, for without need, the meaning for which the Shari'a forbade does not exist. When a single condition is missing, the sale is valid, not prohibited, and the prohibition lapses: what is suspended upon conditions lapses with the lapse of any one of them; and when they are all met, the sale is prohibited and void.

The scholars differed on whom this hadith targets: is this prohibition general, embracing the desert folk as well as the townsfolk, or specific to the desert folk? The majority of scholars hold it general, not specific to the Bedouin: every incomer to a place, even an urbanite, falls under this hadith; the saying, "let no town dweller sell for a nomad", only came out upon the more common, namely that the desert folk are those who bring to the towns: the town dweller is the inhabitant of the cities and villages, and the nomad the inhabitant of the desert; the expression followed the more frequent case, but what is meant is any person, as has come.

As for Imam Malik, his opinion on the desert folk to whom it is not permitted for the town dweller to sell differed into three positions. The first, which is the well-known: they are the camel-traveling people ('amud) exclusively, not the inhabitants of the settled villages their inhabitants never leave. The second: the camel-traveling people and the villagers, except the city folk. The third: it is not permitted for the town dweller to sell to the bringer, even if he be from the cities and towns; he held that the meaning of the prohibition is the town dweller selling to the nomad, the saying "let no town dweller sell for a nomad" only having come out upon the more common. Ibn 'Abd al-Barr said: Malik used to say: the interpretation of that is the desert folk and the villagers; as for the city folk of the countryside, there is no harm in selling to them for the one who considers he knows the price, except one of them who resembles the desert folk: I do not like the town dweller to sell to them. He said of the Bedouin: if he comes asking the town dweller the price, I dislike that he inform him; there is no harm in buying for him; it is only disliked that he sell to him; as for a condition being imposed upon him, there is no harm. This is the narration of Ibn al-Qasim from him; then he said, meaning Malik: the Egyptian does not sell to the Medinan, nor the Medinan to the Egyptian, but he gestures to him. Ibn Wahb reported from Malik: I do not see the town dweller selling to the nomad nor to the villagers. Khalaf b. al-Qasim said: Ahmad b. 'Abdallah b. Muhammad b. 'Abd al-Mu'min narrated to us that al-Mufaddal b. Muhammad al-Jundi said that 'Ali b. Ziyad said that Abu Qurra said: I said to Malik: the Prophet's saying (peace and blessings of Allah be upon him), "let no town dweller sell for a nomad", what is its interpretation? He said: the people of the villages must not sell their goods to the desert folk. I said: if he sends the goods to a brother of his among the villagers, and does not come with his goods? He said: it does not befit him. I said to him: who are the desert folk? He said: the camel-traveling people. I said: the settled villages their inhabitants never leave, small villages around the great city: some of their inhabitants come to the townsfolk with goods, and the townsfolk sell them to them? He said: yes, the meaning of the hadith is the camel-traveling people. Asbagh reported from Ibn al-Qasim the ruling of one who engages in the sale by the town dweller to the nomad.