Islamic Fiqh > Financial transactions > Gharar: forbidden uncertain sales > Forbidden sales, part 3
Contents
Updated on 26 September 2026 at 7:12 PM
This third and final part of the chapter on prohibited sales covers the cause of the prohibition on selling for the desert dweller, selling over the sale of one's brother, bidding over the bid of another (a form of najsh), the 'ina sale in all its forms across the four schools, sale after the Friday call, the sale of the mushaf, the sale of weapons during civil strife and to the people of war, sale in the mosque, the liability of what is taken into possession under a corrupt contract, and finally the status of disputed transactions concluded on the basis of interpretation. Each sheet is translated faithfully and in full, with the exact positions of the Hanafis, the Malikis, the Shafi'is and the Hanbalis, the hadiths and their takhrij, and the classical references in parentheses.
As for the desert dweller, his sale is annulled; likewise 'Isa reported from Ibn al-Qasim, who said: and if it has passed, nothing is due from him (al-Tamhid 18/194-195; al-Istidhkar 6/529).
The cause of the prohibition: Ibn Rushd (may Allah have mercy on him) said: those who prohibited it agreed that the purpose of this prohibition is to show kindness to the people of the town; for things are easier to obtain among the people of the countryside than among the townspeople, and cheaper, indeed often free, that is, without a price; it therefore seemed to them that it is blameworthy for the town dweller to give sincere counsel to the Bedouin, which contradicts his saying (peace be upon him): "Religion is sincere counsel"; it is on this basis that Abu Hanifa relied in permitting the practice.
The proof of the majority of scholars is the hadith of Jabir (may Allah be pleased with him) reported by Muslim and Abu Dawud: the Messenger of Allah (peace be upon him) said: "A town dweller must not sell for a desert dweller; leave the people, Allah will provide for some of them from others", and this addition is unique to Abu Dawud, as far as I know.
It is more likely that this hadith falls under deceiving the Bedouin (ghabn), since he arrives while the price is unknown to him; unless that addition is established, in which case the meaning of the hadith is like the meaning of the prohibition on meeting the caravan riders (talaqqi al-rukban) according to al-Shafi'i's interpretation: if the transaction has taken place, it is complete and the sale is valid, by virtue of his saying (peace be upon him): "Leave the people, Allah will provide for some of them from others" (Bidayat al-Mujtahid 2/125).
Ibn Qudama (may Allah have mercy on him) said: the meaning of this is that if the desert dweller is left to sell his goods, people buy them cheaply and the price is made very favorable for them; but when the town dweller takes charge of buying them and refuses to sell them except at the town's price, the people of the town are squeezed; the Prophet alluded to this meaning (al-Mughni 4/150).
The jurists differed: does the prohibition concern only selling for him, or does it also cover buying for him? The Malikis, according to the well-known view, and the Hanbalis, according to the madhhab, hold that the prohibition concerns only selling for him; as for buying for him, it is valid, for the prohibition does not mention buying either in wording or in meaning: the prohibition on selling in fact aims at kindness to the people of the town, so that the price may be widened for them and harm removed; none of this is in buying for them, since they suffer no harm, there being no deception of the desert dweller; rather it wards harm off them; and creation is equal before the Lawgiver: just as He legislated what wards harm off the townspeople, harm need not reach the desert people.
Imam Malik was asked about the desert dweller who arrives and asks the town dweller about the price: should he inform him? He said: that is disliked. It was said: what do you say about buying for him? He said: there is no harm in it; only selling for him is disliked; as for buying for him, there is no harm in it.
The Shafi'is, as well as Ibn al-Majishun and Ibn Habib among the Malikis, while Ibn Abd al-Barr reported it as one narration from Malik, and as Ibn Hani reported from Imam Ahmad, hold that buying for him is also not permitted; for the Arabs say "I sold" in the sense of "I bought"; just as selling for them is not valid, buying for them is not valid either.
As for the Hanafis, they forbid buying for him when the people of the town are in scarcity and need, out of greed for the high price, because of the harm to the inhabitants; this is witnessed by what is reported from Abu Yusuf: if Bedouins arrived at Kufa wanting to buy up its produce, to the detriment of the people of Kufa, he said: I would prevent them from that; do you not see that the people of the town are prevented from buying in order to hoard (hukra)? This is all the more so.
The scholars also differed: may the town dweller advise the desert dweller, or not? Imam Malik held that it is not permitted for the town dweller to inform the desert dweller of prices, nor to consult him about what gives him a share, because of the harm this causes the townspeople by cutting off the supply channel that the Messenger of Allah (peace be upon him) granted them in the arrival from among them; for if they do not know the price, they may accept selling below the value.
The Hanbalis held that there is no harm in the town dweller advising the desert dweller without himself handling the sale for him, by virtue of the hadith of Talha ibn Ubayd Allah (may Allah be pleased with him), who said to the Bedouin who came to him with his milk pail to sell: the Prophet (peace be upon him) forbade a town dweller to sell for a desert dweller; but go to the market, see who is bidding against you, and consult me until I order you or forbid you.
The Shafi'is said: if the desert dweller consults the town dweller about something in which the latter has a share, should he direct him to holding back and selling gradually? There are two opinions: one, that he must advise him to do so, in fulfillment of sincere counsel; the other, that he should not direct him to it, so that prices remain wide for the people. Then, if the town dweller sells to the desert dweller, when the conditions of the prohibition are combined, he sins and the sale is valid.
When the conditions of the prohibition are combined, the one who does it sins and the sale is valid (al-Jawhara al-Nayyira 3/95; al-Lubab 1/387; Tabyin al-Haqa'iq 4/68; al-'Inaya 9/219; al-Hidaya 3/53; al-Ikhtiyar 2/31; al-Bahr al-Raiq 6/108; Sharh Fath al-Qadir 6/478; Majma' al-Anhar 3/101; Hashiyat Ibn Abidin 5/102; al-Tamhid 18/194-195; al-Istidhkar 6/529; Bidayat al-Mujtahid 2/125; al-Bayan wa-l-Tahsil 9/308, 310; Tahrir al-Mukhtasar 3/554-555; al-Taj wa-l-Iklil 3/396-397; Hashiyat al-Dasuqi with the Sharh al-Kabir 4/111-112; Minah al-Jalil 5/61; Balghat al-Salik 3/63; Mawahib al-Jalil 6/209; al-Shamil fi fiqh al-Imam Malik 2/554; al-Tawdih of Ibn al-Hajib 5/362; al-Muhadhdhab 1/292; Sharh al-Sunna 8/124; Rawdat al-Talibin 3/74-75; Sharh Muslim 10/164-165; Mughni al-Muhtaj 2/472; Tarh al-Tathrib 6/66-67; Asna al-Matalib 2/38; al-Dibaj 2/48-49; al-Mughni 4/150; al-Kafi 2/23; Sharh al-Zarkashi 2/88; al-Mubdi' 4/45, 47; al-Insaf 4/333-334; Nayl al-Awtar 5/264-265; Jawahir al-'Uqud 1/61).
What is meant by a Muslim selling over the sale of his brother and buying over his purchase? The scholars differed over the meaning: is it like bidding over his brother's bid after they have agreed on the price of the goods without yet buying them, so that another comes and says: I will sell you the like of it for less than this price, or something similar, as is the madhhab of the Hanafis and the Malikis? Or after one has bought the goods, another comes and says that to him during the option period (khiyar), as is the madhhab of the Shafi'is and the Hanbalis?
The Hanafis said: the form of selling over one's brother's sale is that two persons agree on the price of some goods, and another then comes and says: I will sell you the like of it for less than this price (Sharh Fath al-Qadir 6/477; Hashiyat Ibn Abidin 5/102). The Hanafis and the Malikis in fact defined selling over another's sale by the definition of bidding among the Shafi'is and the Hanbalis, since for the latter the sale is completed and concluded by offer and acceptance, and they have no option of the session; were they to interpret it by the interpretation of the Shafi'is and the Hanbalis, it would contradict their principles, and Allah knows best.
The Malikis said: "Let none of you sell over his brother's sale" means that the buyer finds the goods beautiful, likes them and trusts the seller, inclines toward him, they haggle over the price, and nothing remains but the contract and the consent by which the sale is completed; when seller and buyer are in such a state, it is not permitted for anyone to intervene by offering either of them what would spoil their transaction; whoever does so has done wrong. But if it is at the beginning of the matter and the first haggling, before the fixing of the price and the inclination, there is no harm.
Imam Malik said: the interpretation of the words of the Messenger of Allah (peace be upon him), in our view, and Allah knows best, "Let none of you sell over the sale of another", is that he forbade a man to bid over his brother's bid when the seller has inclined toward the bidder, that is, the buyer, and begun to require the weighing of the gold, to be discharged of defects and the like; this is the sign that the seller has resolved to trade with that one; that is what is forbidden, and Allah knows best.
Malik (may Allah have mercy on him) said: there is no harm in bidding on goods offered for sale to more than one man, and he said: were people to abandon bidding at the first bidder, goods would be bought at a price close to nothing, and the blameworthy would enter the merchants' sales; this is our ongoing position (al-Muwatta 2/683; al-Tamhid 13/317-318).
The Shafi'is said: selling over one's brother's sale is to come to one who has bought something during the option period, whether the option of the session or the option of a condition, and say: annul it; I will sell you a better one at this price, or the like of it for less, and urge him to annul the first sale for this reason. It is the same when the buyer wishes to annul it for goods better than his at the same price, or the like for less. Buying over one's brother's purchase is for a man to buy goods and not leave its seller until another comes and buys them from the seller for more than that price. If the seller consents to the resale, the prohibition is lifted, according to the correct opinion (al-Hawi al-Kabir 5/343-344; Nihayat al-Matlab 5/437; Rawdat al-Talibin 3/76).
The Hanbalis said: it is not permitted to sell over one's brother's sale, which is to say to one who bought goods for ten: I will give you the like of them for nine. It is likewise forbidden to buy over one's brother's purchase, which is to say to one who sold goods for nine: I offer ten for them, so that he annuls the sale and contracts with me.
As for the return of this prohibition, it refers to a meaning external to the sale itself and its necessary conditions, since neither pillar nor condition is lost; the prohibition aims at a concomitant meaning, external and non-necessary, namely here the harm done to another; what is forbidden is indeed the offering of one's goods to the buyer, or the statement that caused the sale to be annulled for its sake, and that precedes the sale. Moreover, if the annulment that produced the harm is valid, the sale that produces benefit is more entitled still; and finally, the prohibition concerns a human right, which makes this sale resemble that of fictitious bidding (najsh).
The Hanbalis according to the madhhab and the Malikis according to one view hold that it is not permitted, that it is unlawful, and that the second sale is not valid: it is void, for it is prohibited, because of the harm done to the Muslim and the injury directed against him; and the prohibition entails nullity.
The majority of scholars, the Hanafis, the Malikis and the Shafi'is, hold that a Muslim may not sell over the sale of a dhimmi, nor buy over his purchase. Ibn Abd al-Barr (may Allah have mercy on him) said: I know of no disagreement that no one may sell over the sale of a dhimmi, nor bid over his bid, and that he and the Muslim are equal in this; their proof is that, just as the dhimmi enters the prohibition of najsh and the profit of what is not guaranteed and the like, he likewise enters this; it may be said: this is the way of the Muslims; that does not, however, prevent the people of the covenant from entering it and following it; the scholars agreed on the disapproval of a dhimmi bidding over a Muslim's bid, and of a dhimmi's bid when they bring their disputes to us, which shows that they are intended and included in the ruling.
But the madhhab of the Hanbalis is that, if he sells over the sale of a Jew or a Christian, he is not included in this; for they are not the brothers of the Muslims; the wording of the prohibition is specific to Muslims, and extending others to them is valid only if they are like them; the dhimmi is not like the Muslim, nor is his inviolability like his; for that reason answering them in wedding invitations and the like is not obligatory; their view falls under the predominant case. We say: when there is in what is expressly mentioned a meaning that may rightly be considered in the ruling, it is not permitted to omit it nor to transfer the ruling passing over it; Islamic brotherhood has an effect in the obligation of respect, in increased care to preserve his rights, protect his heart and maintain his affection; diverging from that is therefore not permitted (al-Tamhid 13/319; al-Istidhkar 6/523; Sharh Ibn Battal 6/268; Bidayat al-Mujtahid 2/124; al-Bayan wa-l-Tahsil 4/453; al-Qawanin al-Fiqhiyya 1/171; Tabyin al-Haqa'iq 4/67; al-Muhadhdhab 1/291; al-Tanbih p. 96; al-Wasit 3/451-452; Rawdat al-Talibin 3/76; Sharh al-Sunna 8/177; Sharh Sahih Muslim 10/158-159; Tarh al-Tathrib 6/63; Asna al-Matalib 2/39; Mughni al-Muhtaj 2/474; al-Ifsah 1/406-407; al-Mughni 7/111; al-Kafi 2/24-25; al-Mubdi' 4/44; al-Insaf 4/331; al-Rawd al-Murbi' 1/549-550; Matalib Uli al-Nuha 3/467).
Bidding over the bid of another is when the owner of the goods and the one who desires them have agreed on a sale at some price and accepted it, without yet concluding it; then another says to the seller: I will buy it for more than this price, before they commit to the sale; or he says to him: give it back to me, so that I may buy it from you better than that at this price.
The scholars agreed on the prohibition of this bidding once the price has been settled, and because of the corruption it involves, the stirring of enmity and hatred, over and above the explicit prohibition establishing it.
Abu Hurayra (may Allah be pleased with him) said: the Messenger of Allah (peace be upon him) forbade a man to bid over his brother's bid.Reported by al-Bukhari (2577) and Muslim (1515)
The jurists differed on this: is the second sale valid despite the unlawfulness, or void? The majority of scholars, the Hanafis, the Malikis according to the madhhab, the Shafi'is and the Hanbalis according to the madhhab, hold that the sale is valid despite the sin; for it is something that was not completed in the first place, and its owner had the right not to complete it had he wished; and because this is a prohibition aiming at a meaning external to the thing prohibited, not connected to it, namely the hurt and discomfort that befall its owner; that is no part of the contract in any way: it causes displeasure but does not void the contract, like the prohibition of praying on usurped land; and moreover, this prohibition comes after one of the two parties has inclined toward the other.
The Hanbalis have another view, narrated from Imam Malik but weakened by the majority of the Malikis: the sale is void and not valid.
As for bidding on goods offered to whoever bids more, before agreement on the price and consent, without consent being established or the seller giving any indication of it: it is not unlawful by consensus; for the sale by successive bidding exists for the purpose of seeking an increase, and bidding does not prevent people from seeking it; when one seeker asks for it at a price, another may ask for it at a higher price as long as no agreement on an amount is confirmed; the goods are offered only to whoever bids more, for the sake of increase; so what occurs is not bidding over another's bid.
And were people to abandon bidding at the first bidder, goods would be bought at a price close to nothing, and the blameworthy would enter the merchants' sales; this is the consensus of the Muslims: they sell in their markets by successive bidding in every age and every land.
It is reported from Anas ibn Malik (may Allah be pleased with him) that a man came to the Prophet (peace be upon him) and complained to him of poverty, then returned and said: O Messenger of Allah, I came to you from a household I cannot see myself visiting again without one of them dying. He said: go until you find something. He went and returned with a leather bowl and a cup. He said: O Messenger of Allah, part of them used this bowl as a mat and part as clothing, and they used to drink from this cup. The Messenger of Allah (peace be upon him) said: "Who will take them from me for a dirham?" A man said: I, O Messenger of Allah. He said: "Who will offer more than a dirham?" A man said: I will take them for two. He said: "They are yours". Then he called the man and said to him: "Buy with a dirham an axe, and with a dirham food for your family".Weak hadith, reported by Abu Dawud (1641), al-Tirmidhi (1218), Ibn Majah (2198) and al-Bayhaqi in al-Sunan al-Kubra (13593)
The scholars also differed when the seller remains silent and the two situations are equal, with nothing from him indicating consent or its absence: is bidding over his bid forbidden? The Hanafis, the Shafi'is and the Hanbalis according to the madhhab hold that bidding is not forbidden, as if he had expressly refused; the Shafi'is according to one view, and the Hanbalis according to the view chosen by Ibn Qudama (may Allah have mercy on him), hold that it is forbidden.
The dhimmi is the same: no one may bid over his bid; he and the Muslim are equal in this according to the majority of jurists, the Hanafis, the Malikis and the Shafi'is; for the hadith falls under the predominant case, not the specification of the Muslim; Ibn Abd al-Barr (may Allah have mercy on him) reported the consensus on this, saying: I know of no disagreement that it is not permitted to sell over the sale of a dhimmi nor to bid over his bid, and that he and the Muslim are equal in this. Their proof is that, just as the dhimmi enters the prohibition of najsh and the profit of what is not guaranteed and the like, he likewise enters this; it may be said: this is the way of the Muslims; nothing prevents the people of the covenant from entering it and following it. The scholars agreed on the disapproval of a dhimmi bidding over a Muslim's bid, and of a dhimmi's bid when they bring their disputes to us, which shows that they are intended and included in the ruling (al-Tamhid 13/319; al-Istidhkar 6/523).
But the madhhab of the Hanbalis is that, if he bids over the bid of a Jew or a Christian, he is not included in this; for they are not the brothers of the Muslims; the wording of the prohibition is specific to Muslims, and extending others to them is valid only if they are like them; the dhimmi is not like the Muslim, nor is his inviolability like his; for that reason answering them in wedding invitations and the like is not obligatory; their view falls under the predominant case. We say: when there is in what is expressly mentioned a meaning that may rightly be considered in the ruling, it is not permitted to omit it nor to transfer the ruling passing over it; Islamic brotherhood has an effect in the obligation of respect, in increased care to preserve his rights, protect his heart and maintain his affection; diverging from that is therefore not permitted (al-Mabsut 15/75-76; Bada'i' al-Sana'i' 5/232; al-Jawhara al-Nayyira 3/94-95; al-Lubab 1/386; al-Ikhtiyar 2/31; Sharh Fath al-Qadir 6/477; al-Bahr al-Raiq 6/107; Hashiyat Ibn Abidin 5/102; Durar al-Hukkam 6/302; al-Tamhid 13/318-319; al-Istidhkar 6/520, 523; Sharh Ibn Battal 6/268; Bidayat al-Mujtahid 2/124; al-Bayan wa-l-Tahsil 4/453; al-Qawanin al-Fiqhiyya 1/171; al-Fawa'id al-Dawani 2/108-109; Tabyin al-Haqa'iq 4/67; al-Hawi al-Kabir 5/344-345; al-Muhadhdhab 1/291; al-Tanbih p. 96; al-Wasit 3/451-452; Rawdat al-Talibin 3/76; Sharh al-Sunna 8/119; Sharh Sahih Muslim 10/158-159; Tarh al-Tathrib 6/63; Asna al-Matalib 2/39; Mughni al-Muhtaj 2/474; al-Ifsah 1/406-407; al-Mughni 4/149 and 7/111; al-Kafi 2/24-25; al-Mubdi' 4/45; al-Furu' 4/33; al-Insaf 4/332; al-Rawd al-Murbi' 1/549-550; Matalib Uli al-Nuha 3/467; Jami' al-'Ulum wa-l-Hikam 2/270-271).
The 'ina sale is among the sales by which riba is circumvented; it has more than one form; I mention here its most famous forms, then append some of the forms found with the Malikis.
The form of the 'ina sale: to buy something and take possession of it at a known price for a named term, then sell it back to the seller for less than that price, in cash, before paying the price, so that much remains owed in his liability. It was called 'ina because of the obtaining of the 'ayn, that is, the present cash in the transaction, and because the essence of his money returns to the seller.
The ruling on the 'ina sale: the jurists differed over the ruling on this form of the 'ina into two opinions. The first is that of the mass of scholars, the Hanafis, the Malikis and the Hanbalis: this sale is unlawful and constitutes forbidden riba. The Hanafis say: the first sale is valid and the second is corrupt. The Malikis and the Hanbalis say: both sales are void.
The proofs of its prohibition are of several kinds. One of them: Allah, the Most High, forbade riba, and the 'ina sale is a means to it, indeed among the closest of means; and the means that leads to the forbidden is forbidden. There are two expositions here: one, establishing that it is a means; the other, establishing that the means to the forbidden is forbidden.
As for the first, it is attested by transmission, custom, intention and purpose, and the state of the two contracting parties. As for transmission: that which is established from Ibn Abbas, asked about a man who had sold to a man a slave girl for a hundred, then bought her back from him for fifty: he said: "dirhams for dirhams, differing in amount, with a slave girl entered between them". In the book of Muhammad ibn Abd Allah al-Hafiz, from Ibn Abbas (may Allah be pleased with him): "Beware of this 'ina: do not sell dirhams for dirhams with a slave girl between them". In the book of Abu Muhammad al-Hafiz, from Ibn Abbas, asked about the 'ina, meaning the sale of the slave girl: "Allah is not deceived; this is of what Allah and His Messenger forbade". In the book of al-Hafiz Ma'in, from Anas (may Allah be pleased with him), asked about the 'ina, meaning the sale of the slave girl: "Allah is not deceived; this is of what Allah and His Messenger forbade". Now the statement of a Companion, "the Messenger of Allah forbade such and such, or commanded such and such, ruled such and such, obligated such and such", counts, by consensus of the scholars, as a statement attributed to the Prophet, apart from an aberrant difference that carries no weight and is not heeded.
As for the testimony of custom: it is too evident to need establishing; Allah (the Most High) and His servants among the two contracting parties knew their purpose: they did not conclude on the goods a contract by which they intended to acquire them, and they have no purpose in them whatsoever; the object and aim of the first purpose are a hundred for a hundred and twenty; inserting those goods between the two is nothing but deception and play; it is like a letter that has no meaning in itself but is brought in for a meaning lying elsewhere; even if those goods were worth multiples of that price, or the smallest part of its parts, they would not care to make them the locus of the contract, for they have no purpose in them; and the people of custom do not force themselves in this.
As for the intention and the purpose: the outsider observing them is certain that they have no purpose in the goods, and that the first purpose is a hundred for a hundred and twenty; how much more do they themselves know it, with their intentions; for this reason many of them conspire on that before the contract, then bring forth those goods, making lawful what Allah (the Most High) and His Messenger (peace be upon him) forbade.
As for the second exposition, namely that the means to the forbidden is forbidden, it is established by the Book, the Sunna, the fitra and reason. Allah, glory to Him, transformed the Jews into apes and pigs when they resorted to the means they deemed lawful to obtain forbidden game; and the Companions of the Messenger of Allah (peace be upon him) and the Successors called such a practice trickery (mukhada'a), as has come previously. Ayyub al-Sakhtiyani said: "They deceive Allah as they deceive children; were they to do the matter straightforwardly it would be easier". Turning to the Companions for the meanings of words is obligatory, whether they are linguistic or legal; and deception is forbidden.
Moreover: this contract involves displaying a lawful form while concealing what counts among the greatest of major sins; a major sin does not become lawful by inserting it into the form of a sale in which the transfer of ownership is not intended at all, but whose purpose is the reality of riba. Moreover: when a path leads to the forbidden, the Sharia does not come with its permission at all; for permitting the path while forbidding the goal is to combine two opposites; it is inconceivable that a thing be permitted while what leads to it is forbidden; both must necessarily be forbidden or both permitted; the second is categorically void; the first is therefore entailed.
Moreover: the Lawgiver forbade riba, placed it among the major sins, and threatened its consumer with the war of Allah (the Most High) and His Messenger (peace be upon him) only because of the greatest corruption and harm; how, with that, can it be conceived that this great corruption be made lawful by the easiest of tricks? How astonishing: do you see that this trick removed that great corruption and turned it into benefit after it had been corruption?
Moreover: Allah (the Most High) punished the people of the garden who swore to harvest it in the morning, their purpose being to deny the poor their right to the dates that fall at harvest time; when they intended to deny them their right, Allah (the Most High) denied them the fruit altogether. Moreover: whoever resorts to a means whose form is lawful toward the forbidden intends the forbidden; and his intention has more right than the outward appearance of his deed.
Moreover: Ibn Batta and others reported through a good chain from Abu Hurayra that the Prophet (peace be upon him) said: "Do not commit what the Jews committed, or you will make lawful by the slightest tricks what Allah has forbidden"; and its chain is of the kind al-Tirmidhi authenticates.
Moreover: the Prophet (peace be upon him) said: "Allah cursed the Jews; fats were forbidden to them, so they melted them, sold them and ate their price"; "they melted them" means: dissolved and blended them; they only did that so the name of fat would vanish from it and it would take another name, wadak; and that makes nothing lawful, for prohibition follows reality, and it did not change with the change of name. Likewise the prohibition of this riba follows its meaning and reality; it does not vanish by changing the name into the form of a sale, just as the prohibition of fat did not vanish by changing the name through melting and dissolving; and this is clear, praise to Allah (the Most High).
Moreover: the Jews did not benefit from the fat itself, but from its price; so it follows for whoever stops at the forms of contracts and words, without their purposes and realities, that he must forbid that; for Allah (the Most High) did not explicitly forbid the price, but forbade them the fat itself; and when He cursed them for making the price lawful although He had not explicitly forbidden it, that shows that the intended goal must be considered even if the means to it vary; and that requires that benefit not be sought in the object itself nor in its substitute.
A parallel would be to be told: do not approach the orphan's wealth, and then sell it and consume its substitute; or to be told: do not drink wine, and then change its name and drink it; or to be told: do not commit adultery with this woman, and then conclude with her a hire contract saying: I am only taking her benefits; and the like.
They said: to this principle, namely the prohibition of tricks that involve making lawful what Allah has forbidden or removing what Allah (the Most High) has obligated, belong more than a hundred proofs; it is established that the Prophet (peace be upon him) cursed the muhallil and the one for whom legalization is done, although the latter came with the form of a valid marriage contract, when his purpose was legalization and not the reality of marriage. It is established from the Companions that they called him an adulterer, without regard to the form of the contract.
The second proof of the prohibition of the 'ina is what Ibn Umar (may Allah be pleased with him) reported:
I heard the Messenger of Allah (peace be upon him) say: "When you deal in the 'ina, take hold of the tails of cattle, content yourselves with farming, and abandon jihad, Allah will subject you to a humiliation that He will not lift until you return to your religion".Authentic hadith, reported by Abu Dawud (3462) and others
The third proof is the hadith of Abu Ishaq from 'Aliya (his wife), who said: I went out with Umm Mihbab to Mecca and we entered upon Aisha (may Allah be pleased with her) and greeted her; she said to us: from whom are you? We said: from the people of Kufa; she seemed to turn away from us. Umm Mihbab said to her: O Mother of the Believers, I had a slave girl and I sold her to Zayd ibn Arqam al-Ansari for eight hundred dirhams on deferred terms; as he wanted to resell her, I bought her back from him for six hundred in cash. She turned toward us and said: what a bad sale and what a bad purchase! Tell Zayd that he has annulled his jihad with the Messenger of Allah (peace be upon him), unless he repents. She said to her: what if I take from him only my capital? She said: whoever receives an admonition from his Lord and desists, his past deeds are his.Reported by al-Daraqutni (3044) and al-Bayhaqi in al-Sunan al-Kubra (11113); al-Daraqutni said: Umm Mihbab and 'Aliya are unknown, they cannot be argued from; and Ibn Abd al-Barr said in al-Istidhkar (6/272): the hadith is denounced in its wording and has no basis, for good deeds are not annulled by juristic interpretation, only by apostasy; it is impossible that Aisha obliges Zayd to repent by her opinion and that her interpretation makes him an unbeliever: this is not to be presumed of her nor accepted from her
Ibn al-Qayyim (may Allah have mercy on him) said: were it not that the Mother of the Believers possessed knowledge, not open to doubt, that this is forbidden, she would not have permitted herself to say such a thing by juristic interpretation, still less had she intended that the deed is annulled by apostasy and that making riba lawful is still more disbelieving; this is her view, but Zayd is excused because he did not know that this is forbidden; that is why she said: tell him. It is also possible that she intended that this is among the major sins whose sin withstands the reward of jihad, so that it becomes like one who did a good deed and an equal bad deed, as if he did nothing. In either case, the certainty of the Mother of the Believers (may Allah be pleased with her) on this is proof that juristic interpretation is not admissible here; had this been among the matters of interpretation and dispute among the Companions, Aisha (may Allah be pleased with her) would not have laid that upon Zayd; for good deeds are not annulled by matters of interpretation (Hashiyat Ibn al-Qayyim on the Sunan of Abu Dawud 9/246).
Ibn Battal (may Allah have mercy on him) said: our mother Aisha (may Allah be pleased with her) did not say to him that he had annulled his prayer, or his fasting, or his pilgrimage; the meaning is that whoever strives in the path of Allah has fought for Allah; whoever does that and then makes riba lawful has deserved the war of Allah (the Most High); and whoever takes riba has annulled his fighting for Allah; his punishment is therefore of the kind of his sin (Sharh Sahih al-Bukhari 6/219-220).
Al-Kasani (may Allah have mercy on him) said: the argument from the hadith of Aisha proceeds along two lines. One: she attached to Zayd a threat that is not suspended by opinion, namely the nullity of obedience in anything other than apostasy; the apparent is that she said it by hearing it from the Messenger of Allah (peace be upon him); a threat attaches only to the direct perpetration of disobedience; this therefore indicates the corruption of the sale, for a corrupt sale is disobedience. The other: she called it a bad sale and a bad purchase; it is the corrupt that is so described, not the valid; and because this sale contains the likeness of riba: the second price becomes a compensation against the first price, so that there remains of the first price an increase matched by no compensation in the exchange contract, and that is the definition of riba; but the increase became established by the sum of the two contracts, so what is established by one of them is the likeness of riba; and the likeness in this chapter is assimilated to the reality (Bada'i' al-Sana'i' 5/199).
Among what further indicates the prohibition of the 'ina is the hadith of Ibn Mas'ud (may Allah be pleased with him), which he raises to the Prophet (peace be upon him):
"Allah cursed the consumer of riba, the one who pays it, its two witnesses and its scribe, as well as the muhallil and the one for whom legalization is done".Authentic hadith, reported by al-Nasa'i (3416), al-Bayhaqi in al-Sunan al-Kubra (5609) and al-Tabarani in al-Mu'jam al-Kabir (9878)
Now the two witnesses testify, and the scribe writes, only upon a contract whose form permits writing and testimony; they do not witness mere riba nor write it; that is why he coupled them with the muhallil and the muhallal, who displayed the form of marriage without there being marriage, just as the scribe and the two witnesses displayed the form of sale without there being sale. Consider, then, how he (peace be upon him) cursed in this hadith the two witnesses, the scribe, the consumer and the one who pays.
He cursed the beneficiary of the contract and the one who assists in it, as well as the muhallil and the muhallal; the muhallal lahu is the one for whom the legalization is contracted, and the muhallil is the one who assists by displaying the form of the contract, just as the murabi is the one assisted in consuming riba by displaying the form of the written and witnessed contract.
The seat of the prohibition among the jurists: first, that the buyer resell the goods to the seller before collecting the deferred price; if he sells before collection, it is not permitted; the meaning is that if he sold a thing, the buyer took possession, and the seller did not collect the price, and then he buys it back for less than the first price, that is not permitted according to the Hanafis, the Malikis and the Hanbalis; the second sale is void according to all of them, and the first sale is also void according to the Malikis and the Hanbalis. But if he resells after collecting the price, buying back for less than the price is permitted according to the Hanafis, for mutual offsetting is no longer realized after collection, and the likeness of riba can then not enter the contract; and if he collected half the price and then bought back the whole for less than half the price, that is not permitted; likewise if the seller has made cession to the buyer.
Second, that he sold it for cash; if he bought it back against goods, or the first sale was against goods and the buyback for less in cash, that is permitted according to the Hanafis, the Shafi'is and the Hanbalis. Ibn Qudama (may Allah have mercy on him) said: we know of no disagreement on this, for the prohibition has no cause but the likeness of riba, and there is no riba between prices and goods. He said: as for one who sold it for cash and then bought it back for other cash, such as selling for two hundred dirhams and buying back for ten dinars, our companions say: it is permitted, for these are two genera between which difference is not forbidden; it is therefore permitted, as if he had bought it back against goods or at the like price. Abu Hanifa said: it is not permitted, by juristic preference (istihsan), for they are like one thing in monetary value; and because it would be taken as a means to riba, resembling buying back for the genus of the first price; and this is the more correct, if Allah the Most High wills (al-Mughni 4/127; Bada'i' al-Sana'i' 5/199).
Al-Kasani (may Allah have mercy on him) said: this is when the buyback is against the genus of the first price; if it is against a different genus, it is permitted, for riba is not realized upon differing genera except in dirhams and dinars specifically, by istihsan; and the analogy would have it not permitted, for they are two truly different genera, joining thereby the other differing genera. The reason for the istihsan is that they are, in monetary value, like one genus, so that riba is realized by the sum of the two contracts; the second contract therefore contains the likeness of riba, which is riba from one angle (Bada'i' al-Sana'i' 5/199).
Third, that the seller bought it back for less than the first price at which he sold it; if he buys back what he sold at the like of what he sold, or for more, that is permitted according to the Hanafis, the Shafi'is and the Hanbalis, and it is what is understood from the words of the Malikis; for it does not constitute a means, and the corruption of the contract is outweighed against the analogy; we know it only from the report, and the report came concerning buying back for less than the first price; everything beyond it returns to the principle of analogy. Al-Kasani said: if he buys back what he sold at its like before collecting the price, it is permitted by consensus, the likeness having disappeared; likewise if he bought it back for more before collecting the price; for the corruption of the contract is outweighed against the analogy, and we know it only from the report, which came concerning buying back for less than the first price; everything beyond it returns to the principle of analogy (Bada'i' al-Sana'i' 5/199).
Fourth, that the goods be in their state, without diminution from the state of sale; if it has diminished or become defective, like the slave grown thin or having forgotten his craft, the garment torn or worn out, he may buy it back at whatever price he wants according to the Hanafis, the Shafi'is and the Hanbalis, and this is the narration of Ibn al-Qasim from Malik; for the decrease in price corresponds to the decrease in defect; the decrease therefore joins absence, as if he sold it at the price at which he bought it; the likeness of riba is then not realized, the drop in price being due to the drop in the sold item, not to a device aimed at riba. From Ashhab, from Malik, it is not permitted, and this is something whose like people cannot be guaranteed against; Sahnun said: this is better than the narration of Ibn al-Qasim. Ibn Abd al-Barr (may Allah have mercy on him) said: this shows you that they disliked it only out of suspicion; not all people are suspect in such a case; only righteousness and good are to be presumed of a pure Muslim (al-Istidhkar 6/273).
In al-Istidhkar (6/270-271), Ibn Abd al-Barr reports that Malik said, concerning the man who sells to a man a slave girl for a hundred dinars on a term and then buys her back for more than that price at a longer term: that is not proper. The explanation of what is disliked: that he sell the slave girl on a term and then buy her back at a longer term, as if he sold her for thirty dinars due in a month and bought her back for sixty dinars due in a year or half a year; so that if she returns to him, his goods have returned in themselves and her owner has given him thirty dinars for a month against sixty dinars for a year; that is not proper. Abu Umar said: the ruling with him, when one sells goods at a price on a term and buys them back at a farther term for more than that price, is the ruling of one who sells them on a term and buys them back for cash for less; for in both cases his goods return to him in themselves and dirhams or gold greater than them accrue to him at a term; and that is riba, beyond doubt, for whoever intends it; except that the scholars differed over this meaning, and it is the madhhab of those who held that the dirhams must be cut off, for it is most likely that the two contractors intended it. As for one who holds that the sale stands on its outward appearance, and that suspecting a Muslim of what is not lawful for him is unlawful, he says nothing of that. Malik's position in this chapter is the view of the majority of the people of Medina. Ibn Wahb reported from Yunus ibn Yazid, from Rabi'a and Abu al-Zinad, that they said: if you sell a thing on a term, do not buy it back from the one to whom you sold it, nor from anyone selling it to him or transacting with him short of that term, except at the price at which you sold it to him or more; and do not resell him those goods short of that term except at the price or less; and if you buy it back at that very term, buy it at the price, more or less. He said: al-Layth ibn Sa'd informed me from Yahya ibn Sa'id in similar terms; and Abd al-Aziz ibn Abi Salama and Malik ibn Anas told me the like. Malik ibn Anas told me: there is no harm in buying it back for cash, or at a nearer term than the one he sold it for, for more than the price at which he sold it, for no one suspects giving ten dinars in cash, or after a month or two, for five dinars due in a year. Malik said: there is no harm in buying it back at a farther term for less than its price, for no one suspects taking twenty dinars at a term for fifteen. Malik said: suspicion arises only if he sells it for a hundred dinars at a term and then buys it back for less than that, the price being cash, or for more, at a farther term; for he gave him ten dinars in cash against fifteen dinars at a term, and ten dinars after three nights or a month against twenty or the like for a year. Ibn Wahb said: Abd al-Aziz ibn Abi Salama told me all of that likewise. Abu Umar said: Abu Hanifa and his companions follow Malik's madhhab in this, which is the view of al-Thawri, al-Hasan ibn Salih, Ahmad ibn Hanbal and al-Awza'i: whoever bought a slave girl for a thousand dirhams, took possession of her, then resold her to the seller for less than a thousand before paying the price: the second sale is void. Al-Hasan ibn Hayy said: whoever sold on credit, it is not permitted for the seller to buy it back for cash before collecting the price, nor against goods, unless those goods are worth the price or more, not against goods of less value than the price, until he collects the whole price. He said: if the goods diminish in the buyer's hand, there is no harm in the seller buying them back for less than that price, whether the defect-caused diminution is small or great. Al-Awza'i said, concerning a man who sold a slave for a year: when the term comes, he takes him back for his value on the day of taking possession, and he does not buy him without the price before the term falls due except at the price or more. Ahmad said: whoever sold goods on credit, no one may buy them back for less than what he sold them for.
The Hanafis and the Hanbalis said: if its price fell owing to price fluctuations, selling it back for less than its price is not permitted, just as if it were in its original state; for price fluctuation is not considered in rulings, being a languor of appetites and not the loss of a part, as with the usurper and others; the profit therefore returns to him as it left his ownership.
Fifth, that he resell it to the one who bought it from him; if the buyer resells it to someone other than the one who bought it from him, it is not prohibited according to all the jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis; this is what is called tawarruq, contrary to Ibn Taymiyya and Ibn al-Qayyim. Al-Kasani said: if the sold item leaves the buyer's ownership, and the seller then buys it from the second owner for less than he sold it, before collecting the price, it is permitted, for the difference of ownership is like the difference of the object, preventing the realization of riba. If the buyer dies and the seller buys it from his heir for less than he sold it, before collecting the price, it is not permitted, for ownership there did not change: the heir stood in the buyer's place, as shown by the return for defect and the return made against him; and if the buyer sold it to another and the sold item returned to his ownership, and he bought it back for less than he sold it, this is one of two cases: either it returns to him by a new ownership, or under the ruling of the first ownership. If it returns to him by a new ownership, such as purchase, gift, inheritance, rescission by mutual consent (iqala) before or after possession, return for defect after possession without the judge's ruling, and the like of the causes that renew ownership, buying back for less than he sold is permitted, for the difference of ownership is like the difference of the object. If it returns to him under the ruling of the first ownership, such as return by the option of inspection, return by an option of condition before or after possession with or without the judge's ruling, return by the option of defect before possession with or without the judge's ruling, and after possession with the judge's ruling, buying back for less than he sold is not permitted; for the return in these cases is a rescission that reverts to the origin, restoring the former ownership, as if it had never left; and were it so, buying back would not be permitted him; likewise here.
If the seller did not buy it back, but one of those whose testimony is not valid for him bought it, like parents and children, husband and wife, it is not permitted according to Abu Hanifa (may Allah have mercy on him), just as from the seller; according to Abu Yusuf and Muhammad, it is permitted, just as from a stranger. The reason for their view is that each of the two is a stranger to his companion's ownership, their ownerships being separate; the contract of each is therefore concluded for himself, not for his companion, like other strangers; and the stranger's purchase for himself is permitted; likewise the purchase for his companion. As for Abu Hanifa, each of the two habitually sells with his companion's money, to the point that the testimony of one for his companion is not accepted; the meaning of each one's ownership is therefore established for his companion, and his contract falls to his companion from one angle, affecting the corruption of the contract out of precaution in the chapter of riba (Bada'i' al-Sana'i' 5/199-200; see: Ahkam al-Qur'an of al-Jassas 2/185; Sharh Fath al-Qadir 6/424; al-Bahr al-Raiq 6/90-91; Tabyin al-Haqa'iq 4/53; Hashiyat Ibn Abidin 5/325; Durar al-Hukkam 7/413; al-Mudawwana 9/118; al-Istidhkar 6/271, 275; al-Furuq 3/438-439; Sharh Ibn Battal 6/219; Bidayat al-Mujtahid 2/106-107; al-Ishraf 2/503; al-Taj wa-l-Iklil 3/420-422; Mawahib al-Jalil 6/243-245; Sharh Mukhtasar Khalil 5/86; Sharh Hudud Ibn Arafa 1/364; al-Qawanin al-Fiqhiyya 1/171; Sharh al-Sunna 8/72; al-Ifsah 1/404; al-Mughni 4/127; al-Kafi 2/26; al-Mubdi' 4/48; al-Insaf 4/335-337; al-Rawd al-Murbi' 1/554-555; I'lam al-Muwaqqi'in 3/162, 170; Hashiyat Ibn al-Qayyim on the Sunan of Abu Dawud 9/241, 248).
The second opinion is that of the Shafi'is and the Zahiris: this form of sale is lawful; whoever sells to another a thing for a deferred price and delivers it to him, then buys it back from him before collecting the price for less than that price, in cash, that is permitted; it is likewise permitted to sell for a cash price and buy back for more at a term, whether or not he collected the first price, and whether or not the 'ina is a prevailing practice in the land; in short, neither contract is tied to the other once they are distinguished from one another.
Imam al-Shafi'i (may Allah have mercy on him) said: whoever sells some goods at some term and the buyer takes possession of them, there is no harm in the one who bought them reselling them for less than the price or more, on credit or in cash; for it is a sale other than the first sale. Some people said: the seller should not buy it back for less than the price, and he claimed that analogy was valid in this; but he claimed to be following the report, and it is praiseworthy to follow the correct report; when he was asked for the report, this is it: Abu Ishaq, from his wife 'Aliya bint Anafa, that she entered with the wife of Abu al-Safar upon Aisha (may Allah be pleased with her), and mentioned to Aisha that Zayd ibn Arqam had sold a thing for deferred payment, then bought it back for less than the price at which he had sold it; Aisha said: tell Zayd ibn Arqam that Allah has annulled his jihad with the Messenger of Allah, unless he repents. Al-Shafi'i said: he was told: this hadith is established from Aisha (may Allah be pleased with her). He said: she narrated it from her husband. It was said: do you know his wife by anything that establishes her hadith? I never knew her to say anything; I say: you reject the hadith of Busr bint Safwan, an emigrant known for virtue, by reporting the hadith of a woman, and you argue by the hadith of a woman of whom you know nothing more than that her husband narrated from her; even were this from the hadith of one whose hadith is established, the most it would contain is that Zayd ibn Arqam (may Allah be pleased with him) and Aisha (may Allah be pleased with her) differed; for you know that Zayd sells only what he deems lawful for himself, and Aisha deemed it unlawful, and she claimed analogy despite Zayd's view; how should she not have followed Zayd's view, analogy being with him, while you follow analogy in some cases, thereby abandoning the established Sunna? It was said: is not Aisha's view (may Allah be pleased with her) contrary to Zayd's (may Allah be pleased with him)? It was said: who knows? Perhaps she contradicted him only in that he sold for deferred payment, and we too contradict him at this point, for it is an unknown term; as for her buying it back for less than what he sold it for, perhaps she did not contradict him on that at all; perhaps she deemed the sale for deferred payment rescindable and his sale for deferred payment not permitted; she therefore deemed him not to own what he sold. There is no harm in a man lending in what is not originally his. And when a man displays goods to a man and says: buy this and I will profit you such, the man buys it and the purchase is permitted; the one who said "I will profit you" said it with the option: if he wishes he concludes another sale in it, and if he wishes he leaves it; likewise if he says: buy me some goods, describing them to him, or goods of whatever kind you wish and I will profit you in it; all of this is alike: the first sale is permitted, and this applies to what he gave of himself with the option; likewise if one says: I will buy it from you and buy it from you for cash or on credit, the first sale is permitted, and both are with the option in the second sale; if they renew it, it is permitted; and if they trade on condition of binding themselves to the first state, it is rescinded for two reasons: one, that they traded before the seller owned it; the other, that it is a wager, in that if you buy it on such terms I profit you such. If a man buys food at a term and takes possession of it, there is no harm in his selling it, to the one who sold it to him or to another, for cash or at a term, whether it is a specified or unspecified item. And when a man sells goods for cash or at a term, then the buyer haggles over it, the price drops, or it perishes in his hand, and he asks the seller to abate something of its price for him, or to give it to him entirely, that is up to the seller: if he wishes he does it, and if he wishes he does not, because the price is binding upon him; if he wishes he leaves him a portion of the binding price, and if he wishes he does not; whether this occurs from a habit he has adopted or not, and whether they did this at the first sale they traded or after a hundred sales; the habit he adopted has no meaning that makes anything lawful or forbids it; likewise the promise, whether before the contract or after; for the seller's contract upon a promise is that if abatement occurs in the sale, it occurs for him; the sale is therefore rescinded because the price is unknown; and sales, never, nor marriage, nor anything ever, become void except by contract; when he concludes a valid contract, nothing preceding or following it voids it, just as when he concludes a void contract, nothing preceding or following it repairs it, save by concluding a valid contract; and to the end of his words (may Allah have mercy on him) (al-Umm 3/38, 41; see: al-Hawi al-Kabir 5/287-288; Nihayat al-Matlab 5/311; Rawdat al-Talibin 3/79; Sharh al-Sunna 8/72).
The shaykh of Islam Ibn Taymiyya, may Allah sanctify his soul, was asked: concerning the 'ina, is it lawful in the religion of Islam or not? May one be imitated in it according to some of the jurists who held it lawful, or is one obliged to take precautions in one's religion and to follow the texts that have come concerning it? And whoever repents of the mentioned question of the 'ina, is what he gained through it lawful for him, or is he obliged to pay out the profit and return it to its owners if he can, or to give it as charity? If he returns to it in imitation after knowing its invalidity, is that permitted to him or not? Likewise, what do you say of the question of the thulathiyya and of the question of tawarruq?
He answered (may Allah have mercy on him): praise to Allah; if the seeker's purpose is to take dirhams in excess of them at a term, and the giver intends to give him that, this is riba, with no doubt about its prohibition, however one schemes toward it; for deeds are but by intentions, and every man shall have what he intended; these two intended the riba for which Allah (the Most High) sent down the Quran forbidding it.
The origin in this chapter is that purchase is of three kinds:
Ibn Abbas (may Allah be pleased with him) said: if you appraise for cash and then sell for cash, there is no harm in it; and if you appraise for cash and then sell on credit, that is dirhams for dirhams. The meaning of his words: if you appraise, that is, if you value the goods in cash and then buy them at a term, your purpose is nothing but dirhams for dirhams; such is tawarruq: he values the goods on the spot and then buys them at a term for more; sometimes he says to its owner: I want you to give me a thousand dirhams, how much do you profit? He says: two hundred, or the like; or he says: I have this wealth worth a thousand dirhams, or they bring one who values it at a thousand dirhams, then he sells it for more at a term; and this is what the authentic narration warns against.
As for the wealth a man acquired through transactions over which the community differed, such as these questioned transactions and others, being an interpreter therein and holding them lawful, by juristic effort, or by imitation, or by resembling some of the people of knowledge, or because one of them gave him a fatwa to that effect, and the like: the wealth they acquired and took is not due from them, even if it later becomes clear to them that they were in error and that the one who gave them the fatwa erred; for they took it by interpretation; they are therefore no worse than what the unbelievers acquired through false interpretation. The unbelievers, when they trade among themselves in wine or pork holding it lawful and exchange payment, or deal in explicit riba holding it lawful and exchange payment, then embrace Islam and bring their disputes to us: we confirm what is in their hands, and it is permitted for them after Islam to benefit from it; Allah (the Most High) said: "O you who believe, fear Allah and give up what remains of riba, if you are believers" (The Cow, 278): He commanded them to leave what remained in their liabilities of riba and did not command them to return what they had taken. Some of Umar's governors in Iraq took the jizya from the people of the covenant in wine, then sold it back to them; Umar wrote to him forbidding that and said: the Messenger of Allah (peace be upon him) said: "Allah cursed the Jews; fats were forbidden to them, so they sold them and ate their price"; appoint their sale and take the prices from them; Umar forbade them to sell the wine and said: appoint the unbelievers to sell it; when they sell it to their coreligionists and collect its prices, it is permitted for the Muslims to take that price from them; hence the Prophet (peace be upon him) said: "Whatever division was made in the age of ignorance stands as it was made, and whatever division Islam overtakes is made according to the division of Islam"; rather, most of the scholars, such as Malik, Ahmad and Abu Hanifa, say what the Sunna of the Messenger of Allah (peace be upon him) and the Sunna of the rightly guided caliphs indicate: warring unbelievers, if they seized the wealth of the Muslims by war and then embraced Islam or made a pact, it is confirmed in their hands, as the Prophet (peace be upon him) confirmed the hand of the polytheists in what they had taken of the Muslims' wealth in a state of disbelief; for they did not hold its prohibition, and they embraced Islam, and Islam wipes out what precedes it; it forgave them through Islam the unbelief that preceded and the deeds they acquired without incurring sin.
Since the matter is thus, the interpreting Muslim who held lawful what he did of sales, leases and transactions on which some of the scholars give fatwa, if he took wealth and it became clear afterward to its owners that the correct opinion is its prohibition: what they took by interpretation is not forbidden to them, just as it was not forbidden to the unbeliever, after Islam, what he acquired in a state of disbelief by interpretation; and it is permitted for the other Muslims who held its prohibition to deal with them in it, just as it is permitted for a Muslim to deal with the dhimmi in the price of the wine in his hand and the like; but it is incumbent on them, upon hearing the knowledge, to repent of these riba transactions, and it is not proper for anyone to be imitated in them among those who give the fatwa of permissibility, in imitation of some of the scholars; for the prohibition of these transactions is established by the texts and the reports, the Companions did not differ over its prohibition, the origins of the Sharia bear witness to its prohibition, and the corruptions for which Allah forbade riba exist in these transactions, with the added cunning, deception, toil and suffering; for they burden themselves with the viewing, the describing, the possession and other requirements of the intended sale, and this sale is not what they intend; their intent is to take dirhams for dirhams; the path they are commanded thus grows long for them, and riba results; they are among the people of riba punished in this world before the Hereafter, and their hearts bear witness that what they do is cunning, deception and swindle; hence Ayyub al-Sakhtiyani said: they deceive Allah (the Most High) as they deceive children; were they to do the matter straightforwardly, it would be easier for me. The discussion of this is laid out elsewhere; I have composed a large book on it, and Allah (the Most High) knows best (Majmu' al-Fatawa 29/439, 445; see: I'lam al-Muwaqqi'in 3/162, 170; Hashiyat Ibn al-Qayyim on the Sunan of Abu Dawud 9/241, 248).
Sometimes the seeker says: take it for me, and sometimes he does not say: for me; the goods therefore bind the seeker to ten in cash if he said to the one requested: buy it for me for ten, and so forth; and the one commanded is entitled to the lesser between a fee of the like and the profit, and to the rescission of the second sale, the one for twelve at a term; then, if the goods remain in the hands of the one who commands, they are returned to the one commanded as they are; and if they perished in the hands of the one who commands through the annulment of the corrupt sale, their value on the day of possession is returned to him, immediately, whether more than the twelve or less. It was said by others: the second sale proceeds with the one who commands at twelve for a term and is not rescinded, whether the goods remained or perished. If he did not say: for me, in the mentioned case, the second proceeds at the twelve for a term, the suspicion of a loan with benefit being remote; and the one who commands owes the twelve for a term, for the one commanded had guaranteed them had they perished before the second purchase; and if the one who commands wishes the non-realization of the purchase, that is his to choose, for they did not bind him. Or else he says: buy it for me for ten in cash and I take it from you for twelve in cash; he is prevented if the seeker stipulated cash upon the one commanded, saying to him: buy it for me for ten, on condition that you collect it from me, and I buy it from you for twelve in cash; for he then made for him two dirhams in return for his loan and his undertaking of the purchase; it is therefore a loan and a hire with a condition. The goods bind the seeker to the ten, and the one commanded is entitled, for the like of his work, to the lesser between a fee of the like and the two dirhams therein, that is, in this one and in the first of the two preceding divisions, namely his statement: buy it for me for ten in cash and I take it for twelve at a term. Cash without a condition from the seeker is permitted, but as a voluntary favor, and he has the two dirhams, as with the cash of the one who commands; for it is permitted, by his saying: buy it for me for ten in cash, paying it to him, and I take it for twelve in cash, and he has the two dirhams; for they are wages. And if he did not say: for me, in this case, that is, when the seeker stipulates cash upon the one commanded, it is disliked, like a seller's word to a buyer: take from me for a hundred what is worth eighty, because of the odor of riba in it, especially if the buyer says to him: lend me eighty and I will return to you for it a hundred; the one commanded says: this is riba; rather take from me for a hundred, and so on. Or one person says to another: buy it and I will profit you, without fixing for him the amount of the profit: it is disliked; if he fixed it, he is prevented. And if he says: buy it for me for ten at a term and I buy it from you for eight in cash, he is prevented, because of the loan with an increase; for he lent him the eight paid on condition of buying it for him at ten; so said some, and it has no basis, as al-Dasuqi and al-Sawi say. Ibn Rushd and others mentioned that the reason for prevention is that the one who commands hired the one commanded to buy the goods for him by lending him the eight paid, from which he benefits until the term, then returns them, that is, the one who commands pays him the ten at the term to the original seller. Al-Sawi said: and this too is far-fetched, not necessitating the prohibition; so consider (Hashiyat al-Sawi on the Sharh al-Saghir 6/397).
The goods bind the one who commands to what he commanded, namely the ten for their term, and they are not anticipated for him at less, namely the eight in the example; if the lesser is anticipated for the one commanded, it is returned to the one who commands, and the one commanded has a fee of the like. And if he did not say: for me, the second sale is rescinded; the goods are returned to the one commanded if they remain; if they perished, their value on the day of possession is upon the one who commands, according to one of the two opinions. According to the second: it is not rescinded, but proceeds at the eight in cash, and the one commanded owes the ten at the term to the owner of the goods (al-Sharh al-Kabir 4/143, 146; al-Taj wa-l-Iklil 3/420-422; Mawahib al-Jalil 6/243-245; Sharh Mukhtasar Khalil 5/105-107; Hashiyat al-Sawi on the Sharh al-Saghir 6/396; al-Khulasa al-Fiqhiyya on the madhhab of the Maliki masters p. 610-611).
Imam Ibn Rushd laid out the questions of the 'ina, distinguishing what is lawful, disliked and forbidden in it. He said (may Allah have mercy on him): the 'ina is of three aspects: lawful, disliked and forbidden. The lawful is that a man come to a man and say to him: do you have such and such goods that you would sell me on credit? He says: no; he departs from him, and the one asked then buys those goods, then meets him and says: I have what you asked, and sells him that. The disliked is that he say to him: do you have such and such that you would sell me on credit? He says: no; he says to him: buy that and I will buy it from you on credit and profit you in it; he buys it and then sells it to him according to what they agreed upon. The forbidden is that a man say to a man: buy such and such goods for such and such, and I will buy them from you for such and such; and this aspect contains six questions whose rulings differ with the difference of their meanings:
There is no disagreement among the Muslim scholars that sale after the call to Friday prayer is forbidden; more than one scholar reported the consensus on the prohibition of sale after the call for one upon whom the Friday prayer is obligatory; by the word of Allah the Most High:
"O you who believe, when the call is made for prayer on the day of Friday, hasten to the remembrance of Allah and leave off sale"
Surah Al-Jumu'a, 9
and because it involves neglect of the obligation, which is the hastening, when they sit or stand trading; and the prohibition continues until one is finished with the Friday prayer.
They then differed: is it the first call or the last that forbids sale and purchase? The Hanafis according to one view, and the Malikis, the Shafi'is and the Hanbalis according to the madhhab, hold that what forbids is the second call, the one before the imam; for it is the call that existed in the time of the Prophet (peace be upon him); the call, once uttered unqualified, therefore refers only to it. The Hanafis according to the madhhab, and Ahmad according to a narration, hold that sale becomes forbidden and hastening obligatory with the first call, the one after midday; for notice is attained by it; and it is known to occur after midday, the call preceding it not being a call; and because if the second call were considered in the obligation of hastening, one could not perform the preceding sunna, nor the listening; one might even fear for him the loss of the Friday prayer if his house is far from the mosque.
They then differed: is the sale valid despite the prohibition, or corrupt? The Hanafis, the Shafi'is, the Malikis according to one view and the Hanbalis according to one view hold that the sale is valid despite the prohibition; for the prohibition of sale here is not a prohibition of its essence, but of its time; the prohibition aims at a meaning adjacent to the sale, neither in its core nor in a condition of its validity; and a prohibition aimed at an adjacent meaning does not entail corruption. The Malikis according to the well-known view, and the Hanbalis according to the madhhab, hold the sale to be corrupt and void; for the prohibition entails the corruption of what is prohibited, whether it concerns its essence or its time, like fasting the day of the festival; likewise the contracts. The cause of their difference, as we said, is whether the prohibition of a thing whose origin is lawful, when qualified by a description, entails the corruption of what is prohibited, as the Malikis and the Hanbalis hold, or not, as the Hanafis and the Shafi'is hold.
They then differed: does this include sale and the other contracts, or is it specific to sale alone? The Hanafis, the Shafi'is and the Hanbalis according to one view hold that sale, and the like of all the contracts, crafts and other occupations that distract from hastening to the Friday prayer, are forbidden. The Malikis said: sale, and the like of hire, partnership, pre-emption and others, are forbidden at the second call; and the prohibition continues until the prayer is finished; if anything of this occurs at the second call it is rescinded and the goods are returned to their owner; it is not rescinded if it occurred before it or at the first call. As for marriage, gift, charity and writing, they are not rescinded if they occur at the second call, though forbidden. The Hanbalis according to the madhhab said: sale is forbidden; marriage and the rest of the contracts are valid, such as the loan, the pledge, the guarantee, hire, and ratifying an option sale; for these occur rarely, so permitting them is not a means to missing the Friday prayer or part of it, unlike sale.
The scholars stipulated conditions for this prohibition which entails forbiddance:
The people of knowledge differed over the ruling on the sale and purchase of the mushaf: is it permitted or not? The Hanbalis according to the madhhab say: the sale of the mushaf and its rental are forbidden, even on credit, by the word of Ibn Umar (may Allah be pleased with him):
I wish hands were cut off for selling it.Weak hadith, reported by Ibn Abi Shayba in al-Musannaf (4/288), number (20220)
This is because venerating it is obligatory, and its sale involves debasing it and abandoning its veneration; and because it contains the word of Allah (the Most High), it must therefore be protected from sale and debasement.
As for buying it, it is not disliked; it is permitted, for it is easier than selling; it is the rescue of the mushaf and the spending of what is in it; it is therefore permitted. Nor is it disliked to replace it with another mushaf; for it indicates neither turning away from it, nor exchanging it for a worldly compensation, unlike taking its price.
The mass of the scholars, the Hanafis, the Malikis, the Shafi'is, and Ahmad according to a narration, hold the sale, purchase and rental of the mushaf permitted, with disapproval; for the sale falls upon the skin and the paper, and their sale is permitted; as for the disapproval, it is on account of venerating the mushaf, so that it not be made merchandise; and because it involves a kind of degradation, the mushaf being made like the commodities displayed for sale and purchase.
They also differed over the ruling on selling the mushaf to an unbeliever: is it permitted or not? The Malikis, the Shafi'is according to the more apparent, and the Hanbalis hold the sale of the mushaf to the unbeliever forbidden, the sale being valid but prevented; for he is prevented from perpetuating his ownership, and therefore prevented from initiating it; because he belittles it, which reverts to humiliating the Muslims. The unbelieving buyer is compelled, without annulment of the sale, to remove it from his ownership by sale or gift to a Muslim, even a young child. Buying it from the unbeliever is permitted according to the Hanbalis, as a rescue. The Hanafis and the Shafi'is according to one view say: its purchase is valid; for purchase is one of the causes of ownership, so he acquires ownership of it by analogy to inheritance; and because purchase in itself involves nothing of the humiliation of the Muslims; the unbeliever does not belittle the mushaf, for he holds it to be eloquent speech and penetrating wisdom, even if he does not hold it to be the word of Allah (the Most High); he therefore does not belittle it; then he is compelled to sell it, for he does not venerate it as it must be venerated; and were he left in ownership of it, he would touch it while impure; therefore he is compelled to sell it to the Muslims (al-Mabsut 13/133; Mukhtasar Ikhtilaf al-Ulama of al-Tahawi 3/87; al-Mudawwana al-Kubra 11/418; Sharh Hudud Ibn Arafa 1/332; Sharh al-Zarqani 3/14; Hashiyat al-Sawi 6/208; Sharh Mukhtasar Khalil 5/10; al-Muhadhdhab 1/267; Sharh al-Sunna 8/269; al-Majmu' 9/239; Asna al-Matalib 2/41-42; al-Najm al-Wahhaj 4/20; al-Dibaj 2/12; Kanz al-Raghibin with Hashiyat Qalyubi wa Umayra 2/395; Fath al-Bari 6/134; Jawahir al-'Uqud 1/53-54; Tarh al-Tathrib 7/208; Shu'ab al-Iman 2/535; al-Mughni 4/178; al-Kafi 2/8; al-Mubdi' 4/12-13; al-Furu' 4/10; al-Insaf 4/278-279; Kashshaf al-Qina' 3/178; Manar al-Sabil 2/17).
There is no disagreement among the Muslim scholars that the sale of weapons is permitted outside the time of the fitna and of the fighting that occurs between Muslims, one part against another; it falls under the generality of the word of Allah the Most High:
"And Allah has made sale lawful"
Surah Al-Baqara, 275
As for the sale of weapons in the time of the fitna among Muslims and at its time, it is either between Muslims, or between Muslims and rebels. If it is in a fitna among Muslims, it is either known that the one who will buy the weapons will fight with them, or it is not known. If it is known that he will fight with them in the fitna occurring among the Muslims, the mass of the scholars, the Hanafis, the Malikis and the Hanbalis, said: selling them to them is forbidden, for it falls under cooperation in sin and aggression, from which one is deterred by the word of Allah the Most High:
"And do not cooperate in sin and aggression"
Surah Al-Ma'ida, 2
and by the hadith of Imran ibn Husayn (may Allah be pleased with him):
The Messenger of Allah (peace be upon him) forbade the sale of weapons during the fitna.Weak hadith, reported by al-'Aqili in al-Du'afa' (p. 401), Ibn 'Adi in al-Kamil (q 39/1), Abu Amr al-Dani in al-Fitan (152/1) and al-Bayhaqi (5/327)
and because it is a contract upon an object of disobedience to Allah (the Most High), it is therefore not valid; and because the sale of weapons in the days of the fitna is the acquisition of the cause of stirring it, whereas we have been commanded to calm it; he (peace be upon him) said: "The fitna is asleep; may Allah curse the one who awakens it".
The Shafi'is said: it is disliked without being forbidden, and the sale is valid, for two reasons: one, that the disobedience is not present, but only presumed in the second state; it therefore did not prevent the validity of the sale in the present; the other, that he may not disobey Allah (the Most High) with them, and may strive with the weapons in the path of Allah (the Most High).
Al-Shafi'i (may Allah have mercy on him) said: the basis of what I hold is that every contract valid in appearance I do not annul for suspicion or for enmity between the two contractors; I validate it by the validity of the apparent, and I dislike for them the intention, when the intention, were it revealed, would corrupt the sale; just as I dislike a man's buying a sword to kill with it, without it being forbidden for its seller to sell it to one he sees will kill with it unjustly; for he may not kill, and I do not void this sale for him; just as I dislike a man's selling grapes to one he sees will press wine from them, without my voiding the sale if he sells it to him; for he sold it lawful, and it may be that he never makes it into wine; and likewise the owner of the sword may never kill anyone with it; just as I void the marriage of enjoyment; and if a man married a woman by a valid contract intending not to keep her more than a day, or less, or more, I do not void the marriage; I only void it forever by the void contract (al-Umm 3/74).
If he does not know that he will fight with them, has no suspicion of it, and does not know him to be among the people of the fitna, there is no harm in selling them to him according to the Hanafis, the Malikis, the Shafi'is and the Hanbalis; for predominance in the lands belongs to the people of rectitude. If there is there war and fighting between the Muslims and the rebels, such as the Kharijites and the highway robbers and others, the sale of weapons to the people of justice for fighting the people of rebellion and others is permitted according to the Hanafis, the Shafi'is and the Hanbalis, and it is what the words of the Malikis imply. The Hanafis, the Malikis and the Hanbalis said: selling them to the people of rebellion, the Kharijites and the highway robbers is forbidden, for it is aid to disobedience.
The Shafi'is said: it is disliked to sell weapons to one whose disobedience with them is known, such as the highway robber and the rebels, without it being forbidden, and the sale is valid, for two reasons: one, that the disobedience is not present, but only presumed in the second state; it therefore did not prevent the validity of the sale in the present; the other, that he may not disobey Allah (the Most High) with them, and may strive with the weapons in the path of Allah (the Most High).
As for the sale of weapons to the people of war, it is unlawful by consensus, as al-Nawawi said; it is therefore not permitted for a Muslim to deliver to the enemy of the Muslims weapons that strengthen them against the Muslims, nor fodder, nor that by which one is aided toward weapons and fodder; for the sale of weapons to the people of war involves strengthening them to fight the Muslims, and an inducement to them to launch wars and continue fighting, since they seek its aid; that therefore requires prevention (Bada'i' al-Sana'i' 5/223; al-Hidaya Sharh al-Bidaya 2/172; Sharh Fath al-Qadir 6/107; Tabyin al-Haqa'iq 3/296; al-Bahr al-Raiq 5/154; Durar al-Hukkam 3/341; al-Khulasa al-Fiqhiyya on the madhhab of the Hanafi masters 2/794; al-Hindiyya 2/285; Sharh Ibn Battal 6/231; al-Furuq 2/283; al-Bayan wa-l-Tahsil 18/613-614; Mawahib al-Jalil 6/52; al-Umm 3/74; al-Hawi al-Kabir 5/270; Rawdat al-Talibin 3/62, 78; al-Majmu' 9/335; al-Muharrar fi al-Fiqh 1/311; Majmu' al-Fatawa 22/141; al-Mughni 4/155; Sharh al-Zarkashi 2/91; al-Mubdi' 4/42; al-Insaf 4/327-328; Matalib Uli al-Nuha 3/52; Manar al-Sabil 2/15; Fath al-Bari 4/323).
There is no disagreement among the jurists that the mosques must be protected from sale and purchase; for the mosques were only established for the remembrance of Allah (the Most High), the recitation of the Quran and the prayer; and only that of sale, purchase and other worldly matters is permitted therein which amounts to teaching the people and warning them against falling into the forbidden and contravening the sunnas, and the exhortation to that.
The scholars agreed that one other than the one in retreat (mu'takif) is forbidden to sell and buy in the mosque, by the hadith of Abu Hurayra (may Allah be pleased with him):
The Messenger of Allah (peace be upon him) said: "When you see one selling or buying in the mosque, say: may Allah not make your trade profitable; and when you see one seeking a lost object therein, say: may Allah not return it to you".Authentic hadith, reported by al-Tirmidhi (1321), al-Nasa'i in al-Kubra (10004) and Ibn Khuzayma in his Sahih (463)
From Amr ibn Shu'ayb, from his father, from his grandfather: the Messenger of Allah (peace be upon him) forbade buying and selling in the mosque, the recitation of poems in it, the seeking of the lost object in it, and the shaving of the head on the day of Friday before the prayer.Good hadith, reported by Imam Ahmad (6676), Abu Dawud (1079) and al-Nasa'i (714)
The scholars nevertheless differed over this prohibition: is it a prohibition of disapproval or a prohibition of forbiddance? The Hanafis, the Malikis, the Shafi'is according to the madhhab and the Hanbalis according to one view hold the sale and purchase in the mosque disliked for other than the mu'takif, without being forbidden, by the generality that has come concerning sale and purchase in the noble Book and the Sunna, without distinguishing the mosque from other. As for the hadith, it is carried on making the mosques markets like the souk in which one sells and to which goods are brought, or carried on recommendation and praiseworthiness, reconciling the proofs as far as possible. The Hanbalis according to the madhhab said: sale and purchase are forbidden without restriction, by the prohibition that has come concerning it from the Prophet (peace be upon him).
They then differed: is the sale valid or void? Ibn Battal (may Allah have mercy on him) said: the scholars agreed that whatever has been contracted of sale in the mosque must not be rescinded, though the mosque ought to be avoided in all worldly matters; for that reason Umar ibn al-Khattab built the Bat-ha' outside the mosque (Sharh Sahih al-Bukhari of Ibn Battal 2/105). But the reporting of this consensus is open to examination; for the Hanbalis, according to the more correct of the two opinions, say: the sale is void (Bada'i' al-Sana'i' 2/117; Sharh Ma'ani al-Athar 4/358; Sharh Fath al-Qadir 2/298; Tabyin al-Haqa'iq 1/251; al-Bahr al-Raiq 2/327; Mawahib al-Jalil 7/471; Minah al-Jalil 8/90; al-Hawi al-Kabir 3/493; al-Majmu' 2/200-201 and 6/517; al-Mughni 4/148; al-Furu' 4/77; al-Mubdi' 3/82; Fath al-Bari of Ibn Rajab 2/525; al-Insaf 4/385-386; al-Ifsah 1/348; Nayl al-Awtar 2/167).
The jurists differed over the ruling on what is taken into possession by a corrupt contract: is it guaranteed by the one in whose hands it is, or not? According to opinions and detail in each school. The Shafi'is and the Hanbalis hold that what is possessed through a corrupt purchase is guaranteed by the buyer like usurpation, together with its increments; for he took it on a footing of liability; the burden of returning it rests upon him as upon the usurped thing; if it diminishes he guarantees its diminution; its increments are guaranteed; its becoming defective entails the indemnity (arsh) of the diminution; and its destruction entails liability.
The Shafi'is said: what is possessed through a corrupt purchase, whether for a lost condition or a corrupt condition, is guaranteed by the buyer like usurpation; for he is addressed at every moment, on the part of the Lawgiver, with returning it; if it is of similar kind, he must return its like; if it is appraised, the farthest value; if it remains, he must return it with the burden of return; he may not detain it to recover the price, nor advance it before the creditors, like the invalid pledge; if he spent upon it, he has no recourse against the seller for what he spent, even if he was ignorant of the corruption. If the two contractors removed the corrupting factor of the contract, even in the session of the option, it does not revert to valid, the corrupt having no weight; unlike if they appended to it a corrupt or valid condition in the session of the option: it then attaches to the contract, the session of the contract being like the contract. If he sold in one transaction the lawful and the unlawful, such as a milch animal and a carcass, or vinegar and wine, the sale is valid for the lawful and void for the unlawful. Al-Nawawi said in al-Rawda: if one buys a thing by a corrupt purchase, whether for a corrupt condition or another cause, then takes possession of it, he does not own it by possession, his disposal does not take effect, its return is binding upon him, and the burden of return rests upon him as upon the usurped thing; it is not permitted to detain it in order to recover the price; he does not advance with it before the creditors according to the madhhab; an opinion and an angle from al-Ishtakhri have been reported giving him the right to detain it and advance it before the creditors, an aberrant and weak opinion. The rent of the like is due from him for the duration it was in his hand, whether he took the benefit or it perished under him; if it became defective in his hand, the indemnity of the diminution is upon him; if it perished, its value is upon him, more than what it was, from the day of possession to the day of destruction, like the usurped thing; for he is addressed at every moment, on the part of the Law, with returning it. According to one angle, its value on the day of destruction is considered; according to one angle, the day of possession; this difference is expressed in opinions, whichever it may be. The madhhab is: consideration of the greater, and what occurred of separated increments, such as offspring and fruit, and joined increments, such as fattening and the learning of a craft, is guaranteed by him, like the increments of the usurped thing (Rawdat al-Talibin 3/73; Mughni al-Muhtaj 2/480; Asna al-Matalib 2/36; Hashiyat al-Qalyubi 2/276).
The Hanbalis said: what is possessed by a void contract establishes no ownership, and its disposal does not take effect, according to the correct position of the madhhab; he guarantees it like usurpation; he must return the separated and joined growth, of offspring, fruit, earnings and others, like the usurped thing; and the rent of the like for the duration of its presence in his hand; if it diminishes, he guarantees its diminution; if it perishes, its value on the day of destruction is upon him; because it came to his hand without the permission of the Law, resembling the usurped thing (Sharh Muntaha al-Iradat 3/237; al-Qawa'id of Ibn Rajab 1/66; Kashf al-Mukhaddarat 1/373; Manar al-Sabil 2/18; Hashiyat al-Labadi p. 172).
The Malikis said: when the buyer takes possession of the sold item in the corrupt sale, he enters into its liability; for he did not take it on a footing of trust, but on a footing of ownership according to his claim, whereas ownership did not pass to him according to the matter itself; its return to its owner is obligatory upon him as long as it is present; and the buyer's benefiting from it is forbidden as long as it stands, as if it had never left his hand by sale, building or planting. No yield accompanies its return; rather the buyer keeps it, for it was in his liability, and yield follows liability; there is no recourse against the seller for the expense; for whoever has the yield bears the expense: if he spent on that from which he has no yield, he recovers it; if he spent on that from which he has a yield that does not cover the expense, he recovers the excess of the expense. If the sold item perished, corrupted, in the buyer's hand, by a change of its nature, becoming defective, or the attachment of another's right, that which is disputed, even outside the Maliki madhhab, passes at the price at which the sale occurred. If there is no dispute but agreement on its corruption, the buyer guarantees its value if it is appraisable, on the day of possession; and he guarantees the like of the similar item if it was sold by measure or weight, its measure or weight being known and its existence not impossible; otherwise he guarantees its value on the day of the judgment of its return (see: al-Sharh al-Kabir with Hashiyat al-Dasuqi 4/115-116; Tahrir al-Mukhtasar 3/553, 557; Mawahib al-Jalil 6/211-213; al-Taj wa-l-Iklil 3/401-403; Sharh Mukhtasar Khalil 5/86; al-Fawa'id al-Dawani 2/88; Kifayat al-Talib wa Hashiyat al-Adawi 2/148; al-Qawanin al-Fiqhiyya p. 172).
As for the Hanafis, as has preceded, they distinguish the void sale from the corrupt sale. Abu Hanifa (may Allah have mercy on him) said: the void does not confer ownership; for the void is what is devoid of compensation and benefit; it is a deposit in his hand, to the point that if it perishes there is no liability upon the taker; for when he sold with what is not wealth and ordered him to take possession, he consented to his possession without monetary compensation; he is therefore not liable, like the depositor. If one bought a slave with a carcass, took possession of him and freed him, the manumission does not take place according to Abu Hanifa; according to the two companions, the void sale is guaranteed and perishes at its value; for the seller did not consent to his possession for free. What is considered in the value is the day of possession; for the sold item entered his liability by possession; this if the sold item is appraisable; if it is of similar kind, he owns it by its like, which is more just, it being a like in form and meaning. The corrupt confers ownership by possession with the seller's order, explicit or by indication, as when he takes it in the session and remains silent, until it becomes permitted for him to dispose of it except to benefit from it, by what Amra reported from Aisha (may Allah be pleased with her): Barira came to her asking her about her manumission contract; she said: if you wish, give your family and the patronage right (wala) will be mine. When the Messenger of Allah (peace be upon him) came, she mentioned that to him; the Prophet (peace be upon him) said: buy her and free her; the patronage right belongs to the one who frees; then he stood upon the pulpit and said:
"What is the matter with people who impose conditions that are not in the Book of Allah? Whoever imposes a condition that is not in the Book of Allah, it is not for him, even if he imposed a hundred conditions".Reported by al-Bukhari (2735) and Muslim (1504)
The Prophet (peace be upon him) therefore permitted the manumission despite the corruption of the sale by the condition; for the pillar of the transfer of ownership, namely his word: I sell and I buy, issued from the legally competent, addressed person, attached to its locus, namely the wealth, without guardianship, the speech bearing upon both; it thus concludes, being a means to interests; the corruption, for its part, lies in a meaning adjacent to it, like the sale at the time of the call; and the prohibition does not negate the conclusion, but rather establishes it; for it presupposes the conceiving of what is prohibited and the power over it; the prohibition of the inconceivable and the powerless is repugnant; but it confers a foul ownership because of the prohibition. For this reason it is incumbent upon each of the two contractors to rescind it, to remove the foulness and raise the corruption; the judgment is not required: it is rescinded by mere notice from the other, that is, with his knowledge, whether he consents or not; for the rescission involves imposing the rescission upon its owner, so it does not bind without his knowledge. The existence of the sold item at the time of the rescission is required, rescission without it being impossible; if he sold it, freed it or gifted it after possession, that is permitted; his ownership is not annulled by the occurrence of these dispositions, and the rescission is prevented. Its value on the day of possession is due, if it is of appraisable items, or its like if it is of similar kind; for it is like usurpation in that taking possession of it is forbidden; and this contract, being weak because of its adjacency to the corrupting factor, had the conferral of ownership suspended upon possession, like the gift.
Two conditions are required for the corrupt sale to confer ownership: one, possession; ownership is not established before possession, for it is obligatory to rescind, in order to lift the corruption; and obliging ownership before possession would confirm the corruption. The other, that possession occur with the seller's order; if he took possession without order, ownership is not established (Bada'i' al-Sana'i' 5/305; al-Ikhtiyar 2/26, 28; al-Jawhara al-Nayyira 3/71-73; Mukhtasar al-Wiqaya 2/57-58; Khulasat al-Dalail 2/52, 55; al-Lubab 1/377-379; Majma' al-Damanat 479; al-Hidaya and its commentaries 6/45, 96; al-Durr al-Mukhtar 4/125).
According to the majority of the Hanafis and the Malikis, the value is due on the day of possession; this is because it enters into his liability, and not from the day of the contract; for what is guaranteed on the day of the contract is the valid contract. The Hanbalis and Muhammad ibn al-Hasan among the Hanafis, which is an angle for the Shafi'is, hold that its value is considered on the day of destruction or perishing; for by them liability is confirmed, as Muhammad says. The Hanbalis reasoned it by the fact that he took it with its owner's order, thus resembling the borrowed item ('ariyya), which is guaranteed according to them. The madhhab among the Shafi'is is the consideration of the highest value, for the appraisable item, from the time of possession to the time of destruction; and this too is an angle the Hanbalis mentioned in usurpation; Ibn Qudama (may Allah have mercy on him) says on this: if the sold item perishes in the buyer's hand, its value on the day of destruction is upon him, said the qadi; for Ahmad stated it explicitly in usurpation; and because he took it with its owner's order, resembling the borrowed item; and al-Khiraqi mentioned in usurpation that its value, more than what it was, is due from him; it comes out the same here, and that is more fitting; for the object was in its owner's property while it increased, and its decrease is guaranteed upon him along with its increase; likewise at the time of its destruction, as if he had destroyed it by tort; and for the companions of al-Shafi'i there are two angles, like the two madhhabs (Hashiyat Ibn Abidin 4/125; Majma' al-Damanat 476; Tabyin al-Haqa'iq 4/62; Kifayat al-Talib 2/148; Jawahir al-Iklil 2/27; Hashiyat al-Dasuqi 3/71; Asna al-Matalib 2/36; Hashiyat al-Jamal 3/84; Rawdat al-Talibin 3/86-87; al-Mughni with al-Sharh 5/608-609; Kashshaf al-Qina' 3/198; Balghat al-Salik 3/65).
Another opinion among the Hanafis: the sold item is a trust in the buyer's keeping, not guaranteed except by transgression or negligence in its safekeeping. Al-Kasani the Hanafi (may Allah have mercy on him) said: if one sold wealth for what is not wealth, voiding the sale, and the buyer then took the wealth with the seller's order, is it guaranteed by him or is it a trust? The shaykhs differed: some said it is a trust, for it is wealth he took with its owner's order in a contract whose form existed without the meaning; the contract thus joined nothingness, and his order of possession remained; some said it is guaranteed by him, for what is possessed under this sale is not less than what is possessed under bidding over a purchase, which is guaranteed; and this is the more fitting (Bada'i' al-Sana'i' 5/305; Ibn Abidin 4/105; Durar al-Hukkam 1/334, entry 370; al-Jami' li-ahkam al-Kafala and al-Damanat according to the four schools 2/318).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: when the Muslim deals in a transaction whose lawfulness he holds and takes the wealth, it is permitted for the other Muslims to deal with him in that wealth, even if they do not hold the lawfulness of that transaction; for it is established that Umar ibn al-Khattab was informed that some of his governors were taking wine from the people of the covenant against the jizya; he said: may Allah fight such a one! Does he not know that the Messenger of Allah (peace be upon him) said: "Allah fought the Jews; fats were forbidden to them, so they melted them, sold them and ate their prices"? Then Umar said: appoint them to sell it and take its prices from them. Umar thus ordered the dirhams with which the people of the covenant had sold the wine to be taken from them; for they hold it lawful in their religion.
That is why the scholars said: when the unbelievers deal among themselves in transactions whose lawfulness they hold and exchange the wealth, then embrace Islam, that wealth is lawful for them; and if they bring their disputes to us, we confirm it in their hands, whether they brought their dispute before Islam or after. Allah the Most High said:
"O you who believe, fear Allah and give up what remains of riba, if you are believers"
Surah Al-Baqara, 278
He commanded them to leave what remained in the liabilities of riba and did not command them to return what they had taken; for they held it lawful. When the Muslim deals in transactions whose lawfulness he holds, such as the riba tricks on which some of the companions of Abu Hanifa give fatwa, taking the price; or cultivates on condition that the seed be from the worker; or leases the land for a share of its produce, and the like, and takes the wealth: it is permitted for the other Muslims to deal with him in that wealth, even if they do not hold the lawfulness of that transaction, by the safer and more precautionary way; even if it later becomes clear to him that prohibition predominates, the wealth he acquired through a sound interpretation is not due from him; for this is more worthy of pardon and excuse than the interpreting unbeliever; and when some of the jurists restricted this upon some of the people of piety, he drove him to deal with the unbelievers and abandon dealing with the Muslims; yet it is known that Allah (the Most High) and His Messenger (peace be upon him) do not command the Muslim to eat from the wealth of the unbelievers while abandoning the wealth of the Muslims; rather the Muslims are more worthy of all good, and the unbelievers more worthy of all evil (Majmu' al-Fatawa 29/318-320).
He also said: what has been taken by interpretation, it is permissible for the Muslim to buy from the one who took it, even if the buyer holds that contract forbidden; like the dhimmi when he sells wine and takes its price: it is permitted for the Muslim to deal with him in that price, although the sale of wine is not permitted for the Muslim; as Umar ibn al-Khattab (may Allah be pleased with him) said: appoint them to sell it and take its prices; and its cause was that some of his governors took wine in the jizya and sold the wine to the people of the covenant; that reached Umar (may Allah be pleased with him), who disapproved of it and said that; and this is established from Umar (may Allah be pleased with him), and it is the madhhab of the imams. Likewise, whoever dealt in a transaction whose lawfulness he holds in his madhhab and took the wealth: it is permitted for another to buy that wealth from him, even if he does not see the lawfulness of that transaction; were one to suppose that the tax collections were carried out by one who holds them lawful, owing to the fatwa of some people to that effect, or that he holds the taking of this wealth and its direction to jihad and the like among the interests to be permissible: it is permitted for another to buy that wealth from him, even if he does not hold the lawfulness of the taking itself. On this basis, whoever holds that the rulers have a sound interpretation in what they did may buy what they took, even if he does not hold lawful what they did; such as the ruler taking the zakat's value and buying from it; or a governor confiscating a confiscation whose lawfulness they hold; or holding that jihad is incumbent upon the people with their wealth, and that what they took from the collections is among the wealth it is permissible to take and direct to jihad, and other interpretations that may be mistaken but are tolerable to juristic effort; the ruler's taking of the wealth being on this footing, buying it from him is permitted, and from his deputy whom he charged with taking it, even if the buyer does not hold his taking to be permissible; and the buyer did not wrong its owner, for he bought it with his own money from the one who took it holding its lawfulness. On this footing its purchase is lawful according to the more correct of the two opinions; and it is not among the suspicions; since buying from the unbelievers what they took by contracts whose lawfulness they hold is permitted, even though they are forbidden in the religion of the Muslims, buying from the Muslim what he took by a contract whose lawfulness he holds is more entitled still, even if we see it forbidden by the safer and more precautionary way; for the interpretation of the unbeliever, contradicting the religion of Islam, is categorically void, unlike the interpretation of the Muslim.
That is why, when they embrace Islam and bring their disputes to us, having taken wealth by contracts whose lawfulness they hold, such as riba and the price of wine and pork, that wealth is not forbidden to them, just as their dealing in it was not forbidden before Islam; by the word of Allah the Most High: "fear Allah and give up what remains of riba" (The Cow, 278), and He did not forbid what they had taken. Likewise, whoever dealt in riba transactions whose lawfulness he held, then it became clear to him that they are not permitted, among the transactions disputed among the Muslims: what he took through that transaction is not forbidden to him, according to the correct opinion (Majmu' al-Fatawa 29/265-267).