Islamic Fiqh > Financial transactions > Murabaha and riba-free credit > The accretion (nama') of the sold item
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Updated on 26 September 2026 at 7:12 PM
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The scholars differed about an item sold in murabaha, wadi'a, tawliya or partnership: if the buyer bought it and it grew with him and increased, must he inform the buyer? The Hanafis answer that if a separate increase occurs, such as offspring, milk, fruit, wool or a gain, he must not sell it in murabaha before disclosing it: the increase generated from the sold item is itself sold in their view, to the point of preventing return for defect, even without a share of the price. The same applies if the accretion perished through the seller's act or a third party's, compensation (arsh) becoming due, for it became a targeted object of sale facing the price; the targeted object being the stronger case. If it perished through a heavenly calamity, the seller may sell in murabaha without disclosure, even if a part perished; offspring is stronger still, for it is attached to the part. And if he exploited the offspring and the land, he may sell in murabaha without disclosure: an increase not generated from the sold item is not sold by consensus, which is why return for defect is not prevented, the sale of the house or the land withholding no part of the sold item (al-Bada'i', 5/223).
The Malikis rule that whoever bought a female, of a rational or non-rational species, that gave birth with him must not sell it in murabaha without disclosing that it gave birth with him, even if he sells its offspring with it; for the buyer assumes it was bought with its offspring: the birth with him is a defect, the long keeping until the birth is deceit and trickery, and what the birth diminished of its value is a lie in the price, all the more as it may give birth right after its purchase. If he does not disclose and it still exists, the buyer returns it or keeps it and loses nothing, and the seller cannot compel him to deduct anything from the price: he is held to account for the defect and the deceit. If a loss occurred: if it is of the kind of return for defect, such as selling the animal or its death, the seller may stand on the defect, deducting its compensation and the corresponding profit, without being allowed to stand on deceit or lying; if he prefers to content himself with the defect, standing on deceit benefits him more than lying: in deceit he owes the lesser of the price and the value, in lying the greater of the sound price and its profit, or the value as long as it does not exceed the lie and its profit; and if the loss is of the kind of deceit, such as the transfer of markets or a slight defect like absence or a medium one, deceit benefits him still; if the defect is of the corrupting kind, he is given the choice of returning it and what a later event diminished of it, or keeping it while standing on the old defect and its equivalents of profit, or contenting himself with it, and it is returned at its value (Tahbir al-Mukhtasar, 3/662; Sharh Mukhtasar Khalil, 5/177; al-Taj, 3/521; Hashiyat al-Dasuqi, 4/268; Munh al-Jalil, 5/274-275).
The Shafi'is rule that if benefits issued from the item within the buyer's ownership, such as a fruitless tree that bore fruit with him, an animal that became pregnant, carried and gave birth, or milk that appeared and was milked, and he wants to sell that in murabaha, he discloses the whole price paid and deducts nothing for this accretion, for it is an accretion that occurred within his ownership and the contract did not cover it. But if he took fruit from a tree that was fruiting at purchase, or milk or wool present at purchase, he must deduct from the price the share of what he took, for the price faced the whole and the contract covered it, a share of the price having faced it. If the animal was pregnant at purchase and gave birth in his hand, al-Shirazi says: if we hold that pregnancy has a ruling, it is like milk and fruit; if we hold it has none, nothing is deducted from the price for it (al-Muhadhdhab, 1/289; al-Bayan fi madhhab al-imam al-Shafi'i, 5/336-337).
The Hanbalis rule that if the good changed through an increase of its growth, such as fattening or learning a craft, or a separate increase issued from it, such as offspring, fruit or a gain, whoever wants to sell it in murabaha discloses the price without the increase, for it is the amount paid; and if he took the separate increase, he discloses the capital without being bound to describe the state: he is truthful in his report without deceiving the buyer, as if there had been no increase; offspring and fruit are a separate accretion, like the harvest. Ibn al-Mundhir reports from Ahmad that he must disclose all of that, and that is Ishaq's view (al-Mughni, 4/131).
The Hanafis rule that there is no harm in attaching to the capital the wages of the fuller, the dyer, the washer, the spinner, the tailor, the broker, the sheep drover and the rent, likewise the fodder of beasts, then selling the whole in murabaha and tawliya, in consideration of custom: merchants are used to joining these expenses to the capital and counting them in it, and the custom of the Muslims is an absolute proof. The hadith attributed (mawquf) to Ibn Mas'ud reads:
What the Muslims deem good is good with Allah, and what they deem evil is evil with Allah.Report attributed (mawquf) to Ibn Mas'ud
Dyeing and the like raise the value, which varies with places; the seller says at the sale 'it stood me at so much', not 'I bought it at so much', so as not to lie. But the wages of the shepherd, the physician, the cupper, the circumciser and the veterinarian, compensation for injuries, and what one spent on oneself in learning a craft, the Quran or poetry do not attach to the capital: the sale is made in murabaha and tawliya on the first price due through the first contract only, the merchants' custom not joining these expenses to it. Likewise for the mudarib: what he spent on the slaves (food, clothing, upkeep required by good custom) attaches to the capital by custom, his travel expenses for himself do not; the basis of this chapter is custom (Bada'i' al-sana'i', 5/223).
The Malikis distinguish: if the increase gained by the holder of the good over its price has a standing substance counted with the price and receiving a share of the profit, like sewing, dyeing and plastering, it is counted in the price with a share of the profit. If it has no standing substance and he did it himself, like spinning and stretching, it is not counted in the price nor in the profit; if he had it done for a wage, it is counted in the price without a share of the profit, like the wage of transport and binding; and he may count all of it if he discloses it to the buyer (al-Qawanin al-fiqhiyya, 1/174).
The Shafi'is distinguish by wording: 'I sell you what I bought' includes only the price; 'I sell you what stood me at' includes the wages of the weigher, the broker, the porter, the guard, the fuller, the felter, the weaver, the dyer, the value of the dye, the plastering of the house, and all the expenses needed for gaining profit, including the rent of the room holding the goods; expenses aiming at preserving ownership rather than profit, like the mount's fodder, do not enter on the correct view, and that stands against the benefits fully taken from the sold item; but fodder beyond the usual, for fattening, enters, and the physician's wage enters if one bought it sick, an illness arising with oneself counting as an expense. In all this he says 'it stood me at so much', not 'I bought it at so much' nor 'its price is so much', for that would be lying. But work done by himself or by a volunteer, or lodging in his own house or one lent by a third, includes no wage, the good being counted against him only by what he spent; to recover it he says: 'I bought it, or it stood me at so much, and I worked on it for a wage of so much, and I sell it to you for the two plus such a profit' (Rawdat al-talibin, 3/173-174; Mughni al-Muhtaj, 2/548-549).
The Hanbalis rule that if the buyer worked on the good (shortening, felting, beautifying, sewing), he discloses its state when selling in murabaha, whether he worked himself or hired the work; that is the apparent meaning of Ahmad's words: 'he discloses what he bought and what became due to him', and he may not say 'it came upon me at so much', for that would deceive the buyer: perhaps, knowing that part of what it acquired came from the craft, he would no longer want it, like what diminishes the animal through its upkeep and clothing costs, charged to the buyer during his keeping. Ibn Qudama adds that it is possible to permit, for what was done for a wage, joining the wage to the price and saying 'it came upon me at so much', for he is truthful: that is the view of al-Sha'bi, al-Hakam and al-Shafi'i. As for medicines, expenses, clothing, and his own work on the good or another's unpaid work for him, he does not disclose them in the price on one view, and disclosing the state as it is is good (al-Mughni, 4/131; Kashshaf al-Qina', 3/270-271).
The basis is that the sale of murabaha and tawliya is a sale of trust: the buyer trusted the seller in his report of the first price without proof or oath; it must therefore be protected from betrayal, its causes and its suspicion, avoiding all that being obligatory as far as possible. Allah says:
'O you who believe, do not betray Allah and the Messenger, nor betray your trusts knowingly'
Surah al-Anfal, 27
And the Prophet said:
Whoever deceives us is not one of us.Reported by Muslim (101)
The protection is achieved by disclosing what must be disclosed. The Hanafis detail: (1) if a defect reached the good in the seller's or buyer's hand through his act or a third party's, he does not sell it in murabaha before disclosing, by consensus; if through a heavenly calamity, he may sell it at the full price without disclosure. (2) The increase (offspring, fruit, wool, milk, calf) requires disclosure, for it is sold and prevents return for defect; likewise if it perished through his act or a third party's with compensation due; no disclosure if through a heavenly calamity; and none if he exploited the offspring and the land. (3) What was bought on credit (nasi'a) is not sold in murabaha without disclosure: the term carries the semblance of a price, the price being possibly raised because of the term, as if he had bought two things and sold one in murabaha at the whole price; the semblance has here the ruling of reality. (4) What he bought from someone against a debt owed by that one may be sold in murabaha without disclosure; but what he took in settlement of a debt is not sold in murabaha without disclosure. (5) If he bought a garment for 10 dirhams and marked it 12, then sells it in murabaha on the figure without disclosure, that is permitted if the figure and the profit are known, with no betrayal since he is truthful; but he must not say 'I bought it at so much', for he would lie. Abu Yusuf is reported to hold that if the buyer does not know the merchants' custom and thinks the figure is the price, it must not be sold in murabaha on it without disclosure. Likewise inherited money, marked and then sold in murabaha on its figure: permitted. (6) If he bought something, sold it at a profit, then bought it back and wants to sell it in murabaha: he drops any prior profit and sells on what remains of the capital after deduction; if nothing remains, the profit having absorbed the price, sale in murabaha is not permitted at all, on Abu Hanifa's view; Abu Yusuf and Muhammad rule that he sells at the last price without disclosure, the prior contracts having no weight, whether he gained or lost. Example: bought at 10, sold at 15, bought back at 10: he sells in murabaha at 5 on Abu Hanifa's view, at 10 on the two companions'; sold at 20 then bought back at 10: no sale in murabaha at all on Abu Hanifa's view, at 10 on theirs. The two companions' reasoning is that prior contracts vanished by themselves, the last contract standing by its ownership. Abu Hanifa's reasoning is that the repurchase confirmed the profit of 5, which had been exposed to nullity by return for defect; what is confirmed carries the semblance of what is affirmed, so that he became buyer of the garment and of 5 of profit at 10 from one angle: as if he had bought two things and sold one in murabaha at the whole price, which is not permitted without disclosure. And in the case of 20 then 10, it is as if he had bought a garment plus 10 for 10, the garment remaining without compensation in the exchange contract, whence a semblance of riba. (7) What he bought from one whose testimony is not accepted for him (parents, descendants, spouse) is not sold in murabaha without disclosure on Abu Hanifa's view: the suspicion of indulgence in the first purchase is present, people not usually bargaining with them, and this purchase carries the semblance of invalidity, each of them habitually selling with the other's money, so that each one's ownership after the sale stands in a sense; Abu Yusuf and Muhammad hold it permitted without disclosure, the first purchase having no flaw, each one's ownership distinct and separate, as with a purchase from a stranger (al-Bada'i', 5/223-224).
The Malikis make due upon the seller, at the moment of the contract: (1) disclosing what the buyer dislikes in the item itself, like a burnt garment or a mutilated animal, or in its description, like a slave given to running away or stealing; and this applies to every sale, not murabaha alone. (2) Disclosing what he paid and what was contracted, if payment and contract differ: one may contract in dinars and pay in dirhams or in goods; if he bought with gold and paid silver, or the reverse, or one of them paying goods, and sells in murabaha on what was contracted, he must disclose what he paid, and not sell on what he paid without disclosure; if he omits it and the item exists, the buyer chooses between returning it and keeping it for what he paid, which is part of the price; if it perishes with the buyer, he owes the lesser of the contracted price and what was paid. (3) Disclosing the term he bought to, or agreed upon after the contract, for the term decreases and increases and has a share of the price: omitting it is deceit; the buyer chooses between return and confirmation for what he paid if the good exists, otherwise the lesser of the value and the purchase price. (4) Disclosing the length of keeping the good, even real estate: people prefer what has not aged in their hands; a short keeping requires no disclosure, a long keeping without disclosure makes him a deceiver; the buyer chooses between return and keeping at the whole price if the good exists, otherwise the lesser of the price and the value. (5) Disclosing the passing over of counterfeit or defective money in the price, that is, his satisfaction at the contracting, and of what was rebated to him from the price, or the seller's indulgence if the rebate resembles a sale rebate; if he does not disclose, he has lied: if the good exists, the sale binds if the seller rebates the surplus and its profit; otherwise the buyer chooses between return and confirmation for what he paid; if the good perished, he chooses between paying the sound price and the value as long as it does not exceed the lie. (6) Disclosing the gift of part of the price if it is customary among people, resembling people's gifts; otherwise, or if the whole price was gifted before or after payment, no disclosure is due; omitting it is lying: if the good exists and the seller rebates what he gifted of the price and its profit, the sale binds; if it perished with the buyer, he chooses between the value and the sound price and its profit. (7) Disclosing that it is not local if local goods are more sought, or the reverse if non-local goods are more sought, or that it comes from an inheritance, people often refraining from buying what comes from legacies; if he mentioned it to the buyer who entered, no complaint; otherwise it is deceit: the buyer chooses between return and keeping for what he paid if the good exists, otherwise the lesser of the price and the value. (8) Disclosing riding and wearing: that he rode the animal and wore the garment if they are diminished; omitting it is a lie (al-Sharh al-kabir with Hashiyat al-Dasuqi, 4/265-271; Tahbir al-Mukhtasar, 3/660-662; Sharh Mukhtasar Khalil, 5/176-177; Hashiyat al-Sawi, 7/57-59; Munh al-Jalil, 5/370-372).
The Shafi'is make due: (1) the seller's truthfulness on the price fixed by the contract, or what the item cost him, in the disclosure in the murabaha sale as in the description (soundness, breaking, purity, defect). (2) Truthfulness on the term, for the murabaha sale rests on trust, the buyer relying on the seller's view and his contentment for himself, with a middle markup, and the term having a share of the price. If he favored his companion by selling what he bought at 10 then buying it back at 20 to report it in murabaha, it is disliked and the option stands; and if he bought something at 100, it left his ownership and he bought it back at 50, disclosure of the 50 is due. (3) Truthfulness in buying with goods: he mentions that he bought it against goods worth so much, not limiting himself to the value, for the seller against goods is more constrained than the seller against cash; and the same whether he sells by the word of purchase or by the word of cost. If he bought it against a debt owed by the seller: if it is full and undelayed, no disclosure is due; if delayed, disclosure is due. The goods meant here is what has value: a fungible may be sold in murabaha without disclosing its value. (4) Disclosing the old defect, and the one arising with him through calamity or injury diminishing the value or the item, for the purpose changes thereby, and the later defect diminishes the sold item: mere mention of the defect does not suffice, lest the buyer be led to believe it was so at purchase and the price paid faced it with the defect. The old defect seen after purchase or accepted must also be disclosed, likewise buying from a minor child, or against a delayed or insolvent debt. If he took the compensation of a defect and sells by 'what stood me at, deducting the compensation' or by 'what I bought', he describes what took place in the contract with the defect and took the compensation, for the compensation taken is part of the price. (5) If he bought with a loss (ghabn), disclosing it is due (Rawdat al-talibin, 3/175-176; Mughni al-Muhtaj, 2/550; Nihayat al-Muhtaj, 4/128, 135).
The Hanbalis treat the case of two things bought in one transaction, one of which one wants to sell in murabaha, or two partners sharing a purchase, one wanting to sell his share at the price paid: two categories. If the sold item is a value not divisible into parts, like garments, animals or the fruit-bearing tree, selling a part of it in murabaha is not permitted without disclosing the state as it is: Ahmad states textually that any sale bought by several and then divided allows no partner to sell in murabaha unless saying 'we bought it as a group then divided it'; that is the madhhab of al-Thawri, Ishaq and the people of opinion; al-Shafi'i permits selling one's share of the price, the price dividing over the item in proportion to its value, the proof being that if the sold item is a sword with its sheath, the heir takes the sheath at his share of the price. Likewise if he bought two things, found one defective and returned it at its share of the price. Ibn Abi Musa reports another version from Ahmad about what two bought and shared: selling it in murabaha at what he bought is permitted, for that is its price and he is truthful in his report. If the sold item is homogeneous and divisible into parts, like equal wheat and barley, selling a part of it in murabaha at its share of the price is permitted, on Abu Thawr's and the people of opinion's view, with no known disagreement, for the price of the part is known with certainty, hence the permission to sell a qafiz of aloe. Likewise two garments bought at one price on one description: the price divides into two halves without regard to value, each being as if taken alone; and if one acquired a surplus of description, it follows the ruling of a later event after the sale. What was bought at a deferred price is not sold in murabaha without disclosure; what was bought from one's father, son, or one whose testimony is not accepted for oneself is not sold in murabaha without disclosing his situation, on Abu Hanifa's view; al-Shafi'i, Abu Yusuf and Muhammad hold it permitted without disclosure, for he reported a valid contract, as with a purchase from a stranger. For the Hanbalis, buying from such close relatives is suspect of indulgence, favoring them and being lenient: reporting the price is not permitted at all, as with buying from one's mukatab, whose resale in murabaha without disclosure is not permitted, with no known disagreement. The case of the free shop boy is the same if the seller sold him a good then bought it back at a higher price: resale in murabaha without disclosure is not permitted, with no known disagreement, for he is suspect in his own right, like one whose testimony is not accepted for him; Abu al-Khattab holds that if he did it as a ruse it is not permitted, being unlawful and fraudulent; if not a ruse, it is permitted, the soundest view since he is a stranger, and this is not confined to the shop boy. If one bought a garment at 10, sold it at 15, bought it back at 10, disclosing the state as it is is recommended; if he reports having bought it at 10 and no more, that is permitted (the view of al-Shafi'i, Abu Yusuf and Muhammad), for he is truthful in his report, with no suspicion nor deception of the buyer, as if there had been no profit; Ibn Sirin reports that the profit is dropped from the price, reporting the capital as 5, a view Ahmad admired; if he sells it at his purchase price, he discloses his situation, meaning that he gained once then bought it back, a report carried as recommendation; Abu Hanifa holds it must not be sold in murabaha except by disclosing his situation or by saying 'it stands me at 5', and not 'I bought it at 5', for that would be lying, and lying is unlawful; murabaha combines the contracts and requires disclosing what it rests on, as it combines the tailor's and fuller's wages; and through this second contract the profit of the first contract was confirmed, since he is safe from its return, and the profit is one of the two kinds of accretion, like offspring and fruit, so disclosing it in murabaha is due. Ahmad finally says: sale by the written figure (raqm), that is, 'I sell you this garment at its figure', the price written on it, is permitted if known to both at the moment of the contract; that is the view of most jurists, Tawus disliking it; for the Hanbalis it is a sale at a known price, like stating its amount, or 'I sell it to you at what I bought it for', the amount being known, otherwise the sale is invalid since the price is unknown. Ahmad also said: 'musawama is easier for me than the murabaha sale, for the murabaha sale carries trust and letting go on the buyer's part, and requires disclosing the state in the mentioned places; one cannot be safe from the soul's desire in some interpretation or error, so that one stands at risk and hazard; avoiding it is safer' (al-Mughni, 4/132; al-Kafi, 2/96-97; al-Insaf, 4/441; Kashshaf al-Qina', 3/271; Matalib Uli al-Nuha, 3/130).
The scholars differed when betrayal appears from the seller in the contract of murabaha, tawliya, ishirak or wadi'a: is the contract rescinded, the amount of the increase or decrease deducted, or does the buyer receive the option of accepting or returning? The Hanafis answer: if the betrayal appears through the seller's confession, through proof or through retraction, it bears either on the description of the price or on its amount. If it bears on the description (having bought on credit then sold in murabaha at the first price without disclosing it, or sold in tawliya without disclosure), the buyer has the option by consensus: to take or to return; for murabaha is a contract built on trust, the buyer having relied on the seller and trusted his report of the first price, trust being its implied condition, its loss entailing the option, like the loss of safety from a defect. Likewise if he settled a debt of 100 against a slave then sold him in murabaha at 100 without disclosing that it was in return for the settlement.
If the betrayal bears on the amount of the price, saying 'I bought it at 10 and I sell it to you at 11' or 'I bought it at 10 and I hand it over to you in tawliya', and it then appears that he had bought it at 9, the ruling has been disputed. Abu Yusuf, the most apparent view among the Shafi'is and the madhhab among the Hanbalis, holds that the buyer has no option and the sale binds him, but the amount of the betrayal is deducted in both: one dirham in the tawliya, one dirham in the murabaha plus a share of the profit of a tenth of a dirham; for the first price is the origin of the murabaha and tawliya sale, the naming of the faulty amount proves invalid and cancels it, and the contract remains binding at the remaining price. Muhammad, the view opposite the most apparent among the Shafi'is, holds that the buyer has the option in both: he accepted the contract's binding only at the named amount of the price, and the option is established by the loss of safety from betrayal as it is by loss of safety from defect when he finds the item defective. Abu Hanifa distinguished murabaha and tawliya: in murabaha he said like Muhammad, the buyer holding the option, taking at the whole price or leaving and the sale rescinded; in tawliya he said like Abu Yusuf, no option, but he deducts the amount of the betrayal and binds the contract at the remaining price. The difference is that betrayal in murabaha does not take the contract out of being murabaha, part of the price remaining capital and part profit; it entails only a change in the amount of the price, creating a flaw in consent, hence the option, like betrayal in the price's description; whereas in tawliya it takes it out of tawliya, a decrease in the first price having appeared: establishing the option would turn it into murabaha, creating a contract the two did not consent to, which is not permitted; the amount of the betrayal is therefore deducted and the contract bound at the remaining price. All this if the sold item is capable of rescission when the betrayal appears; otherwise the option falls and the whole price binds, for an option over what cannot be rescinded has no benefit, like the option of condition and that of sight (al-Bada'i', 5/225-226; al-Jawhara al-Nayyira, 3/104-108; al-Lubab, 1/394-395; al-Hidaya, 3/56; al-'Inaya, 9/249; Sharh Fath al-Qadir, 6/500; Hashiyat Ibn 'Abidin, 5/132-140).
The Malikis rule that if the seller lied to the buyer in the murabaha sale by raising the price of the good above reality, deliberately or not (for instance having bought it at 8 and reported 10, then sold in murabaha at 12), and the item exists: if he rebates what he lied about and its profit, the sale binds the buyer; otherwise the buyer chooses between returning the item and taking its price, or keeping it at the whole price of the sale. It differs with deceit (ghish): it does not bind the buyer even if his seller rebates what he deceived him about, as if he had bought it at 8, written 10 on it, then sold it in murabaha at the 8, leading the buyer to believe he had erred against himself. Deceit is making one believe the presence of a sought-after missing thing in the sold item, or concealing the absence of a sought-after present thing, like concealing the length of keeping, or writing on the good a price higher than the purchase then selling at the purchase price so as to seem mistaken; all this while the item exists. If the item perished under deceit, the buyer chooses between paying the lesser of the sale price or its value on the day of taking, with no multiplying of profit upon it; and if it perished under lying, the choice is given to the seller (to the buyer on another view) between the sound price and its profit, or its value on the day of taking as long as it does not exceed the lie and its profit, nothing being added, for he was content with that. The deceived item (mudallas) in murabaha follows the general rule: if the item exists, the buyer chooses between returning it and taking the whole price, or keeping it with nothing; if it perished from a corrupting defect, he chooses between returning it and recovering what the defect arising with him diminished, or keeping it and recovering the defect's value and the intended profit (Tahbir al-Mukhtasar, 3/664-665; Mawahib al-Jalil, 6/354; al-Taj wa-l-iklil, 3/524-525; Hashiyat al-Dasuqi, 4/272-274; Sharh Mukhtasar Khalil, 5/180; Hashiyat al-Sawi, 7/67).
The Shafi'is rule, on the most apparent view: if he said 'I bought it at 100' then sold it in murabaha, and it appears he had bought it at 90 by confession or proof, the increase and its profit are deducted, for it is a transfer of ownership resting on the first price. On the opposite view nothing is deducted, for he named a compensation and contracted by it. The sale is valid on both views: he deceived him, and deception does not prevent validity, as when one promotes a defective item. On the most apparent view neither the buyer nor the seller has an option, whether the sold item remains or perishes: the buyer because he accepted the greater, so the lesser is his a fortiori; the seller because of his deception. On the opposite view the option is established, one view for the seller, said by others to be a disputed view. As for the buyer, he may have a purpose in buying at that amount, for fulfilling an oath or executing a bequest; as for the seller, he did not deliver what he named; and the option is immediate. If the seller did not disclose the term, a defect, or anything due, the buyer's option is established because of his deception by omitting what was due, the buyer's harm being repelled by the option. If the seller erred by lowering the price (having said 'I bought it at 100', sold it in murabaha, then claimed the price was 110 and been believed by the buyer), the sale is not valid as murabaha on the soundest view, for it cannot be confirmed increased by the 10 followed by their profit, the contract not bearing increase, decrease on the contrary being known through the proof of compensation. Al-Nawawi nonetheless holds its validity on the soundest view, as if the buyer had erred by increase, the 10 not standing, with an option for the seller on the soundest view. And if the seller calls the buyer a liar without disclosing an error with a plausible cause, his word is not accepted: it is a retraction from a confession to which another's right attached, and his proof is not accepted if he presents it, for he accuses it of lying by his first word; the buyer's oath that he knows nothing of it is accepted on the soundest view, for he may confess when the oath is substituted upon him. On the other view, no, as his proof is not heard. On the soundest view, if he swears, the contract is confirmed as he swore; if he backs out of the oath, it is returned to the seller on the most apparent view, the returned oath standing like a confession, swearing decisively that his price is 110. And if he disclosed a plausible cause of error (a letter from his agent reporting the purchase at such a price, the lie then appearing, or an error in his ledger from one item's price to another), he may take the oath, the excuse stirring the presumption of his truthfulness; the soundest view is to hear afterwards his proof that the price is what he mentioned; on the other view, no, for he accuses it of lying, and that is the famous and textual view (al-Wasit, 3/574-578; Rawdat al-talibin, 3/177-178; Mughni al-Muhtaj, 2/551-552; al-Siraj al-Wahhaj, p. 232; Nihayat al-Muhtaj, 4/134-135; al-Dibaj, 2/106-109; al-Najm al-Wahhaj, 4/180-183).
The Hanbalis, in the madhhab, rule that whoever reported a price then contracted in tawliya, partnership, murabaha or wadi'a, and it appears the price was lower: the buyer deducts the increase in the tawliya and the partnership, with no option; and in the murabaha he also deducts the increase and its share, that is, its share of the profit, with no option; in musawama, the surplus is deducted with no option, for he sold it to him at his capital, and whatever profit or rebate he estimated, when the capital becomes clear the sale binds at what was sold, with the increase or decrease as they agreed, at the remainder: no option for the buyer, the price having been lower than reported and the surplus fallen, he was well favored, like one who delegates the purchase of a determined item at 100 and it is bought at 90. If the reported deferred price appears and the seller concealed the deferral from the buyer, then the buyer learns of it, he takes the item at the deferred price for the term the seller bought to, with no option for the buyer, no power of rescission in the four preceding forms, for he was well favored. According to Ahmad, whoever bought at a deferred price without disclosing it chooses between taking it at the contracted price immediately and rescinding: that is the madhhab of Abu Hanifa and al-Shafi'i, for the seller did not accept the buyer's liability, which may be less than the seller's. Ibn al-Mundhir reports from Ahmad that if the item exists, he chooses between rescinding and taking it at the deferred price, for it is the price the seller bought at, the deferral being an attribute, as if he had reported an increase in the price; unless he consumed the period of withholding the price up to the term's length, Shurayh's view. If the seller says 'the purchase price is 100' then says 'I erred, the price is higher than my report', his word is taken with his oath, sworn at the buyer's request according to most Hanbalis, for the buyer, entering the murabaha with the seller, trusted him and the word of the trustworthy man prevails; the seller swears that he did not know at the time of the sale that its price exceeded his report; if he swears, the buyer chooses between return and paying the claimed surplus. If he backs out of the oath, judgment is given against him by the backing out and he has only what the contract fell upon; likewise if he confessed after the error without excuse. On a transmission from Ahmad, which is the madhhab among the Hanbalis, the seller's word is accepted only with proof, for he confessed the price to which another's right attached; his being trustworthy does not entail accepting his claim of error, like the mudarib who confesses a profit then says 'I erred'. And according to Ahmad, the word of one known for truthfulness is accepted. The buyer does not swear on the seller's claim against him on the sound view of the madhhab, for the latter confessed to him, confession dispensing with the oath; it has been said that the oath of not knowing it rests on him. If one sold a good knowingly below its price, the sale binds him with no option, and the buyer owes only what the contract fell upon. If one bought with dinars and reported, in disclosing the price, having bought with dirhams, or the reverse, the buyer has the option, the contract counting and not the taking; or bought with goods, even low-value circulating coins, and reported having bought with dirhams or dinars: option for the buyer; or the reverse, bought with cash and reported goods: option; likewise bought from one good and reported from another, or bought from one whose testimony is not accepted for him (father, son, wife) while concealing it in disclosing the price: option for the buyer, for he is suspect in their right, favoring them and being lenient; or bought at more than its price as a ruse, like buying from a boy or another, concealing it in disclosing the price: option for the buyer when he learns, between rescission and return at the price, and contentment at the contracted price, as in the other cases of established deception; and deception is unlawful, like deception over a defect; if it is not a ruse, it is permitted, for he is a stranger like any other (al-Mughni, 4/132-134; al-Kafi, 2/97-98; al-Insaf, 4/441; Kashshaf al-Qina', 3/268-271).
Al-mustarsil is the one who lets himself go and grows familiar, ignorant of the value of the good, whether seller or buyer, unable to bargain well: he surrendered to the seller and took what he gave without bargaining or knowing his loss. The scholars agree that whoever sells to a person who does not bargain or cannot bargain, and takes what she gives without bargaining or knowledge of his loss, concludes a valid sale; but it is unlawful to sell to the bargainer at one price and to the non-bargainer, or to one ignorant of the price, at a higher price: one must sell to such people only at the known price, the price of the like. They differed on the mustarsil's option if he suffers a loss beyond custom, the customary loss entailing no return by consensus.
The Hanafis on the view retained for legal opinion, the Malikis on a view famous among them, and the Hanbalis in the madhhab hold that the option is established if the loss is gross: he may rescind the sale or confirm it without compensation. The Hanafis explain the gross loss as what does not fall under the experts' appraisal: if the item sells at 10 and some experts say it is worth 5, others 6 or 7, the loss is gross, for it falls under no one's appraisal; if some say 8, others 9 or 10, the loss is slight; the reference to the experts is because they are consulted on defects and everything requiring expertise in transactions (Radd al-Muhtar, 5/143). The Malikis and the Hanbalis explain the gross loss as what exceeds the third, according to the Prophet's saying in the bequest:
The third, and the third is much.Reported by al-Bukhari (2593) and Muslim (1628)
He described the third as 'much'; the sixth has been said, and: what people do not under-sell by custom. They argue with this saying of the Prophet: 'The loss of the non-bargainer is unlawful', a tradition held very weak, reported by al-Tabarani in 'al-Kabir' (7576): it is a loss born of his ignorance of the sold item, the option being established as with the loss of the receiver of arriving caravans. But the Hanafis on the apparent transmission, the Malikis on the famous view, the Shafi'is and Ahmad on a transmission hold that he has no option: the sold item is intact, no deception on the seller's side, and it is the buyer who neglected to ponder; the decrease in the good's value along with its integrity does not prevent the contract from binding, and being under-sold establishes no option, though it is disliked among the Shafi'is. One of its forms is a man saying to another 'sell me as people sell': the sale is valid among the Malikis, and if he is under-sold beyond custom he has the option on the famous view (Mawahib al-Jalil, 6/325-331; Sharh Mukhtasar Khalil, 5/152; al-Bahr al-Ra'iq, 6/126; al-Muhadhdhab, 1/287; Asna al-Matalib, 2/42; Majmu' al-Fatawa, 28/75, 29/299; al-Mughni, 4/18; al-Insaf, 4/396-397).