Islamic Fiqh > Financial transactions > Financial contracts in Islam > Financial contracts, part 1
Contents
Updated on 26 September 2026 at 7:12 PM
This file translates nineteen sheets of the fiqh encyclopedia devoted to the general rules of the contract of sale in financial transactions: the ruling on sale, the formula (offer and acceptance) and its conditions, conclusion by conduct (al-mu'ata), sale by writing and correspondence, the sales of the minor, the coerced person, the shelter-sale and the jester, the conditions on the object of the contract, the sale of the fuduli and of usurped property, sale by description and by prior viewing, the sale of what one has not seen, the sale of the blind person, and finally the status of salam. The positions of the four schools are reported with their proofs, their classical sources and their nuances.
Sale is a legislated and lawful contract: its legitimacy is established by the Book, the Sunna, consensus and reason, and the proofs of its institution have been transmitted in mass (tawatur).
"And Allah has permitted trade and forbidden usury"
Surah Al-Baqarah, 275
"And take witnesses when you conclude a contract of sale"
Surah Al-Baqarah, 282
"O you who believe, do not consume your wealth among you unjustly, except that it be trade by mutual consent between you"
Surah An-Nisa, 29
"And do not consume your wealth among you unjustly, nor give it to judges in order to consume a portion of the wealth of the people sinfully while you know"
Surah Al-Baqarah, 188
The great Maliki scholar Abu Bakr Ibn al-Arabi said: this verse is one of the rules of transactions, and the foundations of compensatory exchanges, which are four, rest upon it: this verse, the saying of Allah "Allah has permitted trade and forbidden usury", the hadiths on gharar (deceptive uncertainty), and the consideration of purposes and interests.
He added: know that this verse concerns every opponent who claims that a ruling is unlawful; the answer is that we do not accept that it is unlawful until he demonstrates it with evidence, and it then falls under this general scope: the verse proves that the unlawful in transactions is prohibited, without specifying what that unlawful is (Ahkam al-Qur'an, 1/137).
As for the Sunna, it includes the hadith: "Sale is only by mutual consent"; a sahih hadith narrated by Ibn Hibban (4967), Ibn Majah (2185) and al-Bayhaqi in al-Kubra (296).
The two parties to a sale have the option so long as they have not separated.Narrated by al-Bukhari (2079) and Muslim (1532)
Rafi' ibn Khadij narrated that it was asked: O Messenger of Allah, what earning is best? He replied: "A man's work with his hand and every blessed sale", meaning one free of deceit and betrayal (Ahmad in the Musnad, 17304; al-Hakim in al-Mustadrak, 2160).
If one of you takes his rope, brings a bundle of firewood on his back and sells it, Allah makes his face honourable by that: it is better for him than asking people, who may give or withhold.Narrated by al-Bukhari (1402), from al-Zubayr ibn al-Awwam
The Prophet was sent while people were already trading: he confirmed it among them, and he himself sold and bought, directly and through an agent.
As for consensus: the community agreed that sale is lawful and that it is a means of acquiring ownership; this is among the matters of the religion known by necessity, and more than one scholar transmitted it:
As for reason, it argues first from pressing need: people need the goods, merchandise, food and drink in one another's hands, and they have no way but sale and purchase; the greed and stinginess ingrained in nature prevent giving without compensation, so exchange had to be legislated to remove that need (al-Ikhtiyar, 2/3-4).
Wisdom also requires it: each person's need attaches to what is in his fellow's hands, and his fellow will not part with it without compensation; legislating sale opens to each of them the way to attain his aim and remove his need (al-Mughni, 5/219; al-Mubda', 4/3; Matalib Uli al-Nuha, 3/3; Fath al-Bari, 4/287).
Allah made wealth a means for establishing people's interests in this world and legislated the path of trade to acquire it: what everyone needs is not freely available everywhere, and seizure by domination is corruption, while Allah does not love corruption, as indicated by the verse on trade by mutual consent (al-Mabsut, 12/126).
Sale preserves the order of livelihood and the world: no one can produce all he needs by himself; if he were busy ploughing, sowing, harvesting, grinding and kneading, he could not make the tools of tillage and harvest, let alone attend to clothing and housing; without purchase he would seize by force or beg if able, or fight his fellow, and the world would not persist (Hashiyat Ibn Abidin, 6/375).
All this concerns the valid, effective sale. The invalid or prohibited sale has other rulings, detailed in the corrupted and prohibited sales: it is prohibited when it contains a textual prohibition regarding the formula, the contracting parties or the object, and it is then void or corrupted according to the known disagreement between the majority and the Hanafis, with retroactive rescission as detailed later. The ruling may also be mere dislike, when the prohibition is not categorical and the sale need not be rescinded.
The jurists agreed that sale is concluded by offer and acceptance, because both indicate the consent upon which the ruling depends, according to the verse on trade by mutual consent (Surah An-Nisa, 29) and the hadith "Sale is only by mutual consent" (Ibn Hibban 4967, Ibn Majah 2185, Bayhaqi al-Kubra 296). Consent is a hidden matter that cannot be inspected, so the ruling must be attached to an outward sign indicating it, namely the formula, in whatever language, whether or not one knows Arabic, and likewise whatever carries its meaning; this is beyond dispute and is a matter of consensus.
The formula is achieved in one of two ways: speech (as in "I sell" and "I buy"), which is agreed upon among Muslims, or action (called al-mu'ata), which is disputed.
In speech, the offer comes from the seller and indicates transfer of ownership ("I sell to you", "I give you ownership"), and the acceptance comes from the buyer and indicates taking ownership ("I buy", "I accept").
The Hanafis said: the offer is the first statement of either contracting party, whether it comes from the seller ("I sold to you") or from the buyer who initiates ("I bought from you for such"), and the acceptance is the second statement, expressed in the past tense, because speech in contracts is a creative juridical act (insha) decreed by the Law, the past tense carries the offer and certainty while the future is only promise, command or mandate, and the contract is therefore concluded only with the past tense.
In the imperative mode, three utterances are required: if the seller says "buy from me" and the other says "I have bought", the contract is not concluded until the seller says "I sold it to you", or the buyer repeats "I have bought"; for his first statement is not an offer but a command. Two utterances, one past and one future, do not suffice, unlike the marriage contract, which is concluded in that way.
The contract is also concluded by any synonymous expression: "I give it to you for such", "take it for such", "I give you ownership", answered by "I took it", "I accepted", "I approved", "I ratified", for all of these indicate acceptance and consent, and what matters is the meaning.
If one of the contracting parties, seller or buyer, unilaterally imposes the sale ("I sell you this for such"), the other has the option within the session: he may accept the merchandise or return it, according to the hadith "The two parties to a sale have the option so long as they have not separated" (al-Bukhari 2079, Muslim 1532); this right is called khiyar al-qabul (option of acceptance) and lasts to the end of the session, the session being counted as one continuous time. The buyer cannot accept part of the merchandise, nor the seller part of the price, for lack of the other's consent to splitting, since splitting harms the seller, whose custom is to join the inferior to the good in order to market the inferior; unless the offerer specifies the price of each item accepted or left: these are then transactions of distinct meaning and splitting is valid.
If one of the two rises from the session after the offer and before the acceptance, the offer is annulled, for rising indicates disregard, withdrawal and lack of consent, and the contract is annulled by it, like the other exchange contracts (Bada'i' al-Sana'i', 6/530-531; al-Lubab, sharh al-Kitab, 1/347; Khulasat al-Dala'il, 2/25-26; al-Mu'tamad, 256; al-Jawhara al-Nayyira, 3/6-10; Mukhtasar al-Wiqaya, 2/40; al-Ikhtiyar, 2/4; Radd al-Muhtar, 6/370).
The Malikis said: sale is concluded by the formula, whether the buyer's statement in the past tense ("I bought it from you for such") or the seller's ("I sold it to you for such"), with the other's consent, or in the present ("I sell it to you for such", "I buy it from you for such") or the imperative ("sell it to me", "buy from me this merchandise for such"), with the other's satisfaction. If the verb is in the past tense, the sale is concluded and binding: neither party may withdraw before or after the other's consent, even if he swears that he did not intend sale or purchase.
In the imperative, the sale is concluded but its binding force is disputed: some give him the right of withdrawal with an oath that he did not intend purchase; others, the relied-upon view, make it binding like the past tense. In the present tense, the one who withdraws is not bound if he swears that he only intended negotiation or joking; if he withdraws after the other's consent and swears, the case differs, otherwise the sale binds him; and if a context establishes that he intended the sale, it binds him even with an oath. Example: the buyer asks for the merchandise at ten, the seller refuses, he offers eleven, refusal, then the seller says "I sell it to you for twelve" and the buyer says "I accept": the sale is binding, with no right of withdrawal or effective oath, for the back-and-forth of words indicates seriousness, not play. Likewise, if someone asks "at what price do you sell this merchandise", is told "at ten", and says "I take it at that", then the seller refuses, claiming he only wanted to know its value or was joking: the relied-upon view is to return to the indications (qara'in); if they establish serious haggling, the seller is bound, otherwise not, and failing indications either way he retains a right of withdrawal with an oath if he withdraws after the other's consent (Hashiyat al-Dasuqi with al-Sharh al-Kabir, 4/5-7; Tahrir al-Maqala, 5/82-84; Mawahib al-Jalil, 6/6; Ibn Arafa's al-Mukhtasar al-fiqhi, 7/227-228; Sharh Hudud Ibn Arafa, 1/331; Sharh Mayyara, 1/489; Sharh Mukhtasar Khalil, 5/4; al-Fawakih al-Dawani, 2/73; Manh al-Jalil, 1/449; al-Muntaqa, 5/55; Ibn Rushd's al-Bayan, 8/276; al-Taj wa-l-Iklil, 3/268-269).
The Shafi'is said: sale and purchase are concluded by any expression indicating transfer of ownership and understood as such, in whatever language, whether or not one knows Arabic; it is of two types: explicit (sarih) or allusive (kinaya). The explicit is what indicates transfer plainly among the well-known, repeated expressions on the tongues of the bearers of the Law: "I sell you this merchandise for such", "I give you ownership", even in jest; and for acceptance, "I bought", "I took ownership", "I accepted", "I approved from you for such".
The allusive is what may indicate sale as well as something else: "I made it yours for such", "take it", "receive it", "may Allah bless it for you"; if the intention of sale and purchase accompanies, it is valid. An allusive expression joined to mention of the price becomes explicit: "I gift you this house for one hundred dinars" is a sale and not a gift, for the word of gift without price is a gift, but joined to the price it is a sale.
Sale is concluded and lawful by the explicit as by the allusive, but the explicit cuts short dispute and better extinguishes litigation. The buyer's expression may precede the seller's: to "sell it to me" he replies "I sold it to you", and the sale is concluded according to the most apparent view, since "sell it to me" already indicates consent, and the purpose is an expression indicating consent to concluding the contract. Muslim narrated that the Prophet said to Salama ibn al-Akwa' regarding a captive woman: "Give me the woman as a gift", and he replied: "She is yours, O Messenger of Allah" (Muslim 1755); this shows that a gift is concluded by request and offer, and sale a fortiori (Rawdat al-Talibin, 3/5; Mughni al-Muhtaj, 2/409-413; al-Abbab, 507; al-Wasit, 3/386-387; Hashiyat I'anat al-Talibin, 3/5; al-Siraj al-Wahhaj, 206; Hashiyat Qalyubi wa-Umayra, 2/386-388; Nihayat al-Muhtaj, 3/429; al-Dibaj, 2/8-9; al-Najm al-Wahhaj, 4/9-13; Hawashi al-Sharwani, 4/215; I'anat al-Talibin, 3/7-9; al-Bayan, 5/12).
The Hanbalis said: sale is concluded by speech indicating sale and purchase: the offer ("I sell to you", "I give you ownership", "I entrust it to you", that is, I sell it to you at its capital price, both knowing the price; "I give it to you for such", "I accept it in exchange for this"), then the acceptance ("I bought", "I accepted", "I took ownership", "I took it", "I exchanged for it"), provided the acceptance matches the offer in the amount of the price, the description and the rest; for the Lawgiver did not restrict it to any specific formula but embraced everything conveying its meaning.
Acceptance by a command before the offer is valid ("sell me this for such" / "I sold it to you for that"), likewise in the bare past tense without interrogation ("I bought from you for such", "I took it for such"); the seller replies "I sold it to you", or "may Allah bless it for you", or "it is blessed for you", for the meaning is attained. Acceptance may be delayed from the offer as long as both remain in session, for the state of the session is the state of the contract; if one of them engages in what custom breaks the session, or the session ends before acceptance, the contract is annulled, for they have turned away from the sale; and if the acceptance contradicts the offer, it is not concluded (al-Mughni, 5/220; al-Mubda', 4/4; Sharh Muntaha al-Iradat, 3/121-123; al-Rawd al-Murbi', 1/533; Kashshaf al-Qina', 3/167).
From what precedes emerge the points of agreement and disagreement among the jurists on the formula, which the following sheet enumerates.
The Hanafis define the offer as the first statement of either contracting party, whether from the seller ("I sold to you") or the buyer who initiates ("I bought for such"), and the acceptance as the second statement. The Shafi'is and Hanbalis define the offer as what issues from the one who can transfer ownership, even if he speaks later, and the acceptance as what issues from the one who acquires ownership, even if he spoke first. The four schools agree on the lawfulness of the buyer's word preceding the seller's, since the purpose is attained all the same.
The mu'ata linguistically denotes handling (al-munawala), from the verb to handle a thing. In technical terms it is the material exchange indicating consent, without verbal offer or acceptance: in sale, the buyer takes the merchandise and hands the price to the seller, or the seller hands the merchandise to the purchaser who hands him the price, with their mutual consent, without speech or gesture; it is also called ta'ati sale. Sharh al-Rawd (4/330) distinguishes three forms: the seller's word with the buyer's taking ("take this garment for a dinar"), the buyer's word with the seller's handing over, or no word from either, the custom of placing the price and taking the object sufficing.
The validity of sale by mu'ata raised three opinions:
This disagreement over mu'ata in sale extends to lease, pledge, gift and their like. Al-Nawawi reported that Malik said: sale is concluded by whatever people count as sale, and that Ibn al-Sabbagh approved it, which he held the soundest view in evidence and his own choice, as did al-Mutawalli and al-Baghawi (Rawdat al-Talibin, 3/6). Ibn Taymiyya said: in contracts one returns to people's custom; what people count as sale, lease or gift is sale, lease or gift, for these names have no definition in language or Law, and every name without definition refers for its definition to custom (Majmu' al-Fatawa, 29/226-227; cf. Bada'i' al-Sana'i', 6/532; Majma' al-Bahrayn, 258; Mukhtasar al-Wiqaya, 2/41; al-Ikhtiyar, 2/4; Kanz al-Daqa'iq, 207; Radd al-Muhtar, 6/376; al-Mughni, 5/220-224; Kashshaf al-Qina', 3/166; al-Incaf, 4/263).
The majority (Hanafis, Shafi'is, Hanbalis) affirms the validity of contracting by writing between two present persons, or by the word of one present and the writing of an absent one. Sale is likewise concluded if one of the contracting parties writes to an absent person "I sold you my house for such", or sends a messenger carrying that word, and the buyer accepts after learning of the offer from the letter or the messenger.
The Shafi'is require immediacy of acceptance: the option of session extends to the recipient of the letter or message as long as he remains in his session of acceptance, with no session counted for the writer, even after the recipient's acceptance; the latter's option continues as long as the recipient's option lasts. There is no requirement to send the letter or messenger immediately after the offer, and the Shafi'is require here too that no long interval separate the word of one from the writing of the other.
For the absent party, one considers what proceeds from him after he knows or believes the sale has occurred in his favour: prolonged silence from the one requested to reply, or an interrupting statement indicating disregard, breaks the contract; the small amount is pardoned when it serves an interest, as in divorce or the ju'ala (reward contract). The other schools do not require immediacy of acceptance: the Hanbalis state explicitly that delay between offer and acceptance does not harm here, for delay combined with the buyer's absence does not indicate disregard.
Al-Buhuti wrote: if the buyer is absent from the session and the seller writes to him or has it said to him "I sold you my house for such" or "I sold you such a property, identified by what distinguishes it", the contract is valid as soon as the news reaches him before he refuses, unlike the case where he is present; the author thus distinguishes the delay of acceptance according as the buyer is present or absent, which accords with Abu Talib's riwaya on marriage: people say to a man "marry us Fulana", he answers "I have married her for a thousand", they inform the husband who says "I have accepted"; he said: yes, it is a marriage. The Shaykh al-Taqi added that one may say: if the other contracting party is present, his acceptance is required; if he is absent, delay of acceptance is permitted (Kashshaf al-Qina', 3/168-169).
The Hanafis, however, do not validate the sale of the absent one: al-Kasani wrote that if one party makes the offer ("I sold you my slave to Fulan the absent one for such") and the absent one accepts when the news reaches him, the contract is not concluded, unless he has an agent who accepts on his behalf; for each half of the contract of sale depends on the other party within the session, not on the other contracting party beyond the session, by consensus, except through an agent, a message or writing (Bada'i' al-Sana'i', 6/542; Hashiyat al-Dasuqi with al-Sharh al-Kabir, 4/4; Tuhfat al-Muhtaj with Hawashi al-Sharwani, 4/339; Nihayat al-Muhtaj with Hashiyat al-Shubramullisi, 3/442).
Preliminary: Islam, speech or sanity are not required to conclude the contract: the sale of the non-Muslim, the mute or the drunkard is valid. Sale is not concluded through an agent acting for both sides, except for the father and his executor, the judge and the messenger on both sides, when the sale is at its market value; and a man may combine the qualities of guardian and agent in the marriage contract.
The non-discerning minor: his sale is not valid according to the majority of jurists, against some Malikis, even with his guardian's permission, for the transfer of ownership depends on consent; the Prophet said: "The wealth of a Muslim is not lawful to another except by the good pleasure of his soul"; so a valid consent is required, which the non-discerning lacks.
The sale of the discerning minor raised three opinions:
The madman wholly overcome by his madness may transact nothing in any case, even with permission; if he has periods of lucidity, his transactions during them are valid. The imbecile (ma'tuh), of little understanding, confused speech and defective management, follows the ruling of the madman, except that he neither strikes nor insults as the madman does. The sale of one who has wholly lost his mind through illness is not valid, even if the buyer took possession; the sale of the madman whose madness is not total is valid. If any of these sells or buys while understanding the contract and intending it, without jesting or erring, the guardian has the option: to confirm if there is benefit, or annul, guarding against gross underprice (ghabn fahish), which is never permitted even with the guardian's authorization, unlike the slight (al-Mabsut, 25/20-22; Bada'i' al-Sana'i', 5/135; al-Jawhara al-Nayyira, 3/235-240; al-Ikhtiyar, 2/113-114; al-Lubab, 1/440-443; al-'Inaya, 13/235; Mukhtasar al-Wiqaya, 2/409; Tabyin al-Haqa'iq, 5/191; Radd al-Muhtar, 6/373; al-Bahr al-Ra'iq, 5/279).
The Hanbalis add in the school: the sale of the discerning one and the prodigal (safih) is not valid without their guardian's permission; if permission is given, it is valid, based on "And test the orphans" (Surah An-Nisa, 6), that is, test them to learn their maturity, which is achieved by delegating to them sale and purchase; permitting without benefit is forbidden, and their disposition in a thing of little value takes effect without permission. According to the other Hanbali riwaya, the minor's sale is not valid before puberty, for he is not legally responsible and resembles the non-discerning; and the prodigal is placed under interdiction for his bad dispositions and squandering, so permission would be permission without benefit: his sale is valid only with permission, except in a thing of little value, for the wisdom of the interdiction is fear of losing his wealth, absent in the trivial; this is illustrated by Abu al-Darda', who bought a sparrow from a boy and released it (al-Mughni, 4/168; al-Kafi, 2/195; Kashshaf al-Qina', 3/172-173; al-Mubda', 4/8; al-Incaf, 4/267).
The sale of the coerced (mukrah) and of the one pressed presents two cases. If the coercion is justified, as when the judge forces him to sell his property to settle his debt, the sale is valid and irrevocable according to the jurists, for he was pressed by a lawful right: he owed in any case to discharge that right otherwise than by the sold thing; not having done so, his sale becomes his own choice and binds him. Al-Bukhari devotes to this a chapter on the sale of the coerced person, in right and otherwise, in which Abu Hurayra narrated: while we were in the mosque, the Messenger of Allah came out to us and said "Go to the Jews"; we went with him to the house of study; he called them: "O company of Jews, accept Islam and you will be safe"; they replied "you have conveyed, O Abu al-Qasim"; he said "That is what I want" three times, then: "Know that the earth belongs to Allah and His Messenger, and I want to expel you; whoever among you finds wherewithal, let him sell his property; otherwise know that the earth belongs to Allah and His Messenger" (al-Bukhari 6545).
Ibn Battal (Sharh Sahih al-Bukhari, 8/298) cites al-Muhallab: what the rightfully-pressed person sold is final and lawful, without withdrawal according to the jurists; the argument from this hadith is that the Prophet's expulsion of the Jews was a right, based on revelation from Allah, and he permitted them to sell their property: their sale was lawful because the coercion did not concern the essence of the thing sold but what devolved upon them through expulsion; the same applies to the sale of one upon whom a right weighs.
If the coercion is unjust, that is, one makes him sell under oppression or force, that sale is unlawful and void by the agreement of the jurists, based on the verse of sale by mutual consent (Surah An-Nisa, 29), the hadith "Sale is only by mutual consent" (Ibn Hibban 4967, Ibn Majah 2185, Bayhaqi al-Kubra 296) and the hadith "A Muslim's wealth is lawful only with the good pleasure of his soul" (narrated by Ahmad, al-Bayhaqi and Abu Ya'la). Badr al-Din al-'Ayni wrote: the sale of the coerced is void by unanimous agreement (Umdat al-Qari, 22/4).
Ibn Battal reported: Muhammad ibn Sahnun said that our Companions and the people of Iraq agreed that the sale of the coerced under oppression does not bind him; al-Abhari said: it is a consensus; Mutarrif, Ibn Abd al-Hakam and Asbagh said: it makes no difference whether the price reached the coerced, who then handed it to the one who forced him to sell, or the oppressor himself received the price from the buyer, for he receives it for another, not himself; when the coerced recovers his goods from the hands of the purchaser, he has more right to them than anyone and owes nothing of the price: the sales are successively unwound until the first purchaser turns back against the oppressor to whom the price reached; if the object is lost with an intermediary, he turns back on him for its value or the price paid, whichever is greater. Al-Qurtubi (al-Jami' li-ahkam al-Qur'an, 10/184): whichever buyer knew the coerced's condition guarantees what he bought from him, slaves and goods, like the usurper; any later disposition (manumission, management, endowment) does not bind the coerced, who takes back his property. Sahnun: our Companions and the people of Iraq agreed that the sale of the coerced under oppression is unlawful; al-Abhari: it is a consensus.
There remains the disagreement over the legal effect of the sale of the one coerced unjustly: is consent a condition of validity whose absence corrupts the contract (Hanafi view), a condition of bindingness making the contract non-binding (Maliki view, with internal discussion), or a condition of conclusion whose absence voids the contract (Shafi'i and Hanbali view)?
The shelter sale, or sale of safety, is to fear an oppressor's aggression against part of one's property and to pretend to sell it to a third party to escape him and take shelter, with no real intention of selling on either side, the contract being concluded with all its pillars and conditions.
Two opinions:
The Malikis have no explicit text on the shelter sale: their books mention only the sale of the coerced and that of the jester, and their statement on the jester's sale comes in the next question.
Jest (hazl) in language means play. The jester in sale is he who utters the seller's words by his own choice and consent, but without wanting the establishment of the legal effect nor approving it; he is the opposite of the serious person, and to intend a thing is to intend that for which it was instituted. The difference between the shelter sale and the jester's sale: the former, though usually prompted by coercion, is in reality a jester's sale, for the seller pronounces the formula of sale without truly intending sale; that is why al-Kasani likens it to the hazil's sale: jesting contradicts the will to the effect and consent to it, but not consent to the act and its choice, so that it resembles the conditional option in sale.
Two opinions on its validity:
The object of the contract, that is, the merchandise sold, must meet several conditions. The first is to be lawful, valued property (mal mutaqawwim), that is, possessing a lawful benefit without necessity: food, drink, clothing, mount, real estate, slaves and bondswomen, based on the verse "Allah has permitted trade" (Surah Al-Baqarah, 275). The Prophet bought a camel from Jabir (al-Bukhari 2604, Muslim 715), a horse from a Bedouin (Abu Dawud 3607, al-Nasa'i 4647, Ahmad 5/215), delegated Urwa to buy a sheep (al-Bukhari 3643, Muslim 1873), sold a mudd (al-Bukhari 2231, Muslim 997), and confirmed his Companions in selling and buying these goods.
The sale of carrion and blood is therefore prohibited for lack of value, that of wine and the pig for lack of lawful benefit, by agreement of the scholars, based on Jabir's hadith: "Allah forbade the sale of wine, carrion, swine and idols" (al-Bukhari 2236, Muslim 1581); fish and locusts are excepted from carrion. The sale of musical instruments and wine is not valid, nor that of insects, except with benefit: the leech for bloodletting and worms for fishing according to the Hanbalis.
The second condition is purity: the impure can be neither merchandise nor price. If one sells an impure or defiled object that cannot be purified, the sale is not concluded; likewise, if someone buys a pure object and fixes as its price wine or a pig, the sale is not concluded: purity is a condition of the object of the contract, whether price or merchandise. This is a matter of consensus apart from some details, such as the sale of the udhra and the sirqin (droppings), deferred to the chapter of prohibited sales.
The third condition is a lawful benefit, present or prospective, so that the price may be matched to it; what has no use is not wealth, and its sale is void, for it is consuming people's wealth unjustly:
The Malikis require that the object of the contract have a benefit: the sale of what has benefit is lawful, and that of what has none is prohibited, both as object and as price, for it is consuming wealth unjustly, like forbidden food when death threatens. They divide bodies into two categories: those with no benefit at all, whose contract is not valid and whose ownership itself is invalid, like the bat; and those with benefit, in three sub-categories: those all of whose benefits are forbidden, which follow the ruling of the useless and whose sale and appropriation are both invalid (wine, carrion, blood, pork flesh, forbidden musical instruments, for what is legally non-existent equals the physically non-existent); those all of whose benefits are lawful, whose sale is valid by consensus (garment, slave, real estate and the like); and those mixing lawful and forbidden benefits.
On this last case, al-Hattab cites al-Mazari: it is the case that confounds minds and trips feet; scholars hesitate, and I uncover its secret to spare you their disagreement. If the majority of benefits and the intended purpose are forbidden, the lawful being merely accessory, it joins the first category: the example of impure oil, most of whose uses (eating, ointment, soap-making, lighting) are forbidden according to the reputed view, except lighting outside mosques and use by non-humans, which are accessory; its sale is therefore prohibited. Al-Mazari gives as another example the fat of carrion: the intended purpose, food, is forbidden, though it contains lawful benefits for those who permit certain uses; and gharar sales join this case, since the exchange may never yield benefit. If the majority of benefits and the intended purpose are lawful, the forbidden being accessory, it joins the second category: the example of raisins, from which wine can be made. If the intended benefits mix lawful and forbidden, or the forbidden benefit is intended while the rest are lawful, al-Mazari says this is the problematic case and it must be attached to the prohibited: the intended forbidden benefit has a share of the price and the contract encompasses it with the rest, yet the contract is indivisible and exchange over the forbidden is prohibited; the whole is therefore prevented by the impossibility of separating, and the price of the rest would become unknown. Ibn Shas ruled: if the intended benefits split between lawful and forbidden, the sale is not valid, for what corresponds to the forbidden is unlawful consumption of wealth and renders the rest of the price unknown; this reasoning holds also for a single intended forbidden benefit; this category, whose sale is prevented for those two reasons, remains validly owned, so that its owner enjoys its lawful benefits. Ibn Shas adds a branch: if a forbidden benefit is certain but its being intended is doubtful, some stop short on the sale's lawfulness and others dislike it without forbidding; al-Mazari says the scrupulous stop there and the lax opt for dislike without prohibition, and he concludes: hold fast to this principle, it is a jewel of knowledge; whoever masters it finds easy all the disputed questions of this chapter (Mawahib al-Jalil, 6/65-67; Tahrir al-Mukhtasar, 3/465; Hashiyat al-Dasuqi, 4/16; al-Furuq of al-Qarafi, 3/370-371).
The Shafi'is require of the merchandise that it yield benefit, a condition of validity without disagreement. Absence of benefit has two causes: smallness, as a grain or two of wheat or raisins, which do not count as wealth: taking them from another's granary is a sin and they must be returned; if they perish, the correct view is absence of liability, for lack of value; and vitality, as insects, whose sale is not lawful. The pure owned animal that is not human is of two types: that which is used (camels, cattle, sheep, horses, mules, donkeys, gazelles, deer, falcons, kids, leopards, pigeons, sparrows, eagles; the peacock for its colour, the starling, parrot and nightingale for their voice, the monkey, elephant, cat, silkworm and bee): its sale is valid without disagreement; that of the young donkey is valid without disagreement too, as it tends to benefit; and that which is not used (beetles, scorpions, snakes, worms, mice, ants, and beasts of prey useless for hunting and fighting and not eaten: lion, wolf, leopard, bear and the like): its sale is not valid, without regard to kings' keeping them for majesty. Al-Nawawi wrote: such is the madhhab and the text, followed by the author and the Iraqis in general and the majority of Khurasanis; al-Qadi Husayn, Imam al-Haramayn, al-Ghazali and other Khurasanis reported a weak view that selling beasts of prey is lawful since they are pure and tanning their skins is expected, but they weakened it because the merchandise as it stands yields no intended benefit and the skin's benefit is not intended, just as the sale of an impure skin is prohibited by consensus although its use after tanning is possible. He said in the Rawda: the sale of the leech is valid on the soundest view, for its benefit of drawing blood; and poison that kills in large doses and cures in small (squill, opium) may be sold, while that which kills in both large and small doses is prohibited; the Imam and his master inclined to permission so it might be slipped into the unbeliever's food. Musical instruments (flute, tunbur and the like): if after smashing and dismantling they no longer count as wealth, their sale is not valid, their benefit being non-existent in Law; if they still count after smashing, two views, the correct one being prohibition; the Imam held a middle view, chosen by him and al-Ghazali: made of precious material their sale is valid, of wood and the like not; the madhhab is absolute prohibition, and most authors answered thus (Rawdat al-Talibin, 3/15-18; al-Majmu', 9/226-227; al-Wasit, 3/400-403; Nihayat al-Muhtaj, 3/455; Mughni al-Muhtaj, 2/426-427).
The Hanbalis require of the object of the contract, price or merchandise, that it be wealth: in Law, what whose benefit is lawful in all circumstances, or whose acquisition is lawful without need; excluded are what has no use (insects), what whose use is forbidden (wine), what is lawful only in necessity (carrion), and what whose acquisition is lawful only for a need (the dog). Valid are the sale of the mule and donkey, which people use and trade in every age without disapproval; of birds prized for their voice (falcon, parrot); of the silkworm and its seed, pure and beneficial, from which comes the noblest of fabrics; of the bee alone or with its hive, or the hive with its bees if access inside is visible, which grounds knowledge; of camphor, whose sale is valid, since the Sahih relates that a woman entered the Fire over a cat she had confined, the possessive particle there indicating ownership; of musk, whose benefit and acquisition are lawful; of catchable game (the owl used as a decoy to trap birds); of tractable beasts fit for hunting (leopards) and birds of prey (goshawk, falcon, their young and their eggs), whose benefit is present or prospective; of the monkey for guarding, since guarding is a lawful benefit; of the leech for bloodletting, an intended benefit; and of human milk separated from the body, for it is pure and beneficial, like sheep's milk, unlike a man's milk, whose sale is textually disliked. The sale of carrion, even pure (a human corpse), is not valid for lack of benefit, except fish, locusts and sea creatures that live only in water, whose carcass is lawful; nor that of impure sirqin, by consensus on its impurity, while the sale of pure sirqin (pigeon droppings) is known to be valid; nor that of impure fat (carrion fat, part of it) or defiled oil (oil or shiraj touched by an unwashable impurity), like the impurity of the substance; one may however anoint oneself with defiled oil outside the mosque, as one uses the tanned skin of carrion (Kashshaf al-Qina', 3/186-187; Minar al-Sabil, 2/11; Sharh Muntaha al-Iradat, 3/135; al-Rawd al-Murbi', 1/546).
The fourth condition is that the merchandise be the seller's property, or that he be authorized over it at the moment of contract by the owner or by the Law, like the agent, the minor's guardian and the endowment supervisor. The owner's sale of his property and his purchase with it are valid, for the Law gave him authority over his wealth; likewise the guardian's or executor's sale of the property of minors under his guardianship, and the agent's sale of his principal's property, for all of them hold authority, granted by the Law for guardians or by the owner himself for agents.
On selling another's property without authorization, called the fuduli's sale, two opinions:
The Hanafis further require that the merchandise itself be owned: the sale of kala' (grass growing of itself), whether in the seller's field, another's or in shared land, of water in a river or well, of game, wood and herbs before securing possession (i hraz) is not valid (Durrar al-Hukkam, 1/324; al-Khulasah al-fiqhiyya on the Hanafi madhhab, 2/38).
The fifth condition, agreed by the jurists, is that the seller be able to deliver the merchandise: the sale of a bird in the sky or a fish in the water, once it left his hand, is not valid, nor that of lost property or a runaway slave. Ahmad narrated from Abu Sa'id that the Messenger of Allah forbade buying a runaway slave (a weak hadith, Ahmad 3/42); and Muslim narrated from Abu Hurayra that the Prophet forbade gharar sale (1513). Ibn Taymiyya wrote: gharar is that whose outcome is unknown; its sale belongs to maysir (gambling): when a slave flees or a horse or camel strays, its master who sells it sells it by gamble; the buyer takes it without paying its value: if it succeeds, the seller says "you gambled with me and took my property for a low price"; if it fails, the buyer says "you gambled and took the price without compensation": one reaches the evil of gambling, which breeds enmity and hatred, and the unlawful consumption of wealth, which is injustice; gharar sale thus contains injustice, enmity and hatred. Among gharar is what the Prophet forbade: the sale of the fetus in the womb (habal al-habala), the mulasiq (stallions) and embryos, sale by years, sale of fruit before its ripeness, sale by touch (mulamasa) and by casting pebbles (munabadha) (Majmu' al-Fatawa, 29/22-23).
The sale of fish in the water is prohibited by agreement of the jurists, based on Ibn Mas'ud's hadith: "Do not buy fish in the water, for it is gharar" (a weak hadith: Ahmad 3676, Bayhaqi al-Kubra 10641, judged sahih upon Ibn Mas'ud by some); for sale aims at transferring disposal, impossible over what cannot be delivered; the schools admit exceptions only under differing conditions:
The sale of usurped property (maghsub): the jurists agree it is not lawful if the seller cannot take the property from the usurper, nor if he can but the usurper does not acknowledge his right over it. They then differ over the sale by the usurper himself, or to one able to take it from the usurper, or with the usurper's acknowledgment:
The sixth condition, agreed by the jurists, is that the merchandise and the price be known to the contracting parties, with knowledge that excludes dispute and litigation, for ignorance is gharar and the Prophet forbade gharar sale. The sale of what the contracting parties, or one of them, does not know is not valid, nor fixing it as price; if either is unknown with ignorance leading to dispute, as "I sell you a sheep from this flock" or "a garment from this bundle", the sale is corrupted by agreement of the scholars, so great is the difference between sheep and sheep, garment and garment.
Hanafis: the merchandise and its price must be known with knowledge excluding dispute; ignorance leading to dispute corrupts the sale, other ignorance does not, for dispute-preventing ignorance blocks delivery and receipt, so the purpose of sale is not attained, while otherwise the purpose is attained. Thus "a sheep from this flock" or "a garment from this bundle" is corrupted; if the seller designates a sheep or a garment and delivers it, it is permitted, as an initial sale by accommodation (muradat), for sales exist to reach the exhaustion of terms and dispute leads to annihilation, and consent, sale's condition, attaches only to the known (Hashiyat al-Dasuqi with al-Sharh al-Kabir, 4/24; al-Taj wa-l-Iklil, 3/288-289; Mawahib al-Jalil, 6/83-84; Tahrir al-Mukhtasar, 3/472; al-Zarqani's Sharh Mukhtasar Khalil, 5/41; Manh al-Jalil, 4/465).
Malikis: price and merchandise must be known to seller and buyer, otherwise the sale is corrupted; ignorance of the whole or the detail corrupts. Four cases: unknown in whole and detail (contents of a house or shop, an inheritance or gift unknown): not valid; known in whole, unknown in detail (two slaves for two men in one transaction, without individual attribution): not valid; unknown in whole, known in detail: valid, like buying a granary or portion of known quantity, each cubit or ardebb for such a price; known in whole and detail: valid. One contractor's ignorance equals both's; some say the sale is corrupted only if both together ignore the quantity or description, or if one ignores and the other knows of his ignorance and trades anyway; otherwise the sale resembles a sale with deception: the ignorant one, once informed, has the option between ratifying and returning.
Shafi'is: the merchandise must be known to the contracting parties, otherwise the sale is not valid if ignorance, in both or one of them, most often leads to dispute; the required knowledge covers the object, the quantity and the description. Designation of the object: "I sell you this" is valid, unlike "a slave of my slaves" or "a sheep from this flock": not valid, for it is undesignated and gharar; likewise "I sell you this flock except one" is not valid, whether values are equal or not. Quantity: "the fill of this sack of wheat" or "the weight of this rock in raisins" is not valid; nor "at the price Fulan sold his goods" nor "at the market parity price"; but "I sell you this wheat, every measure for such" is valid even if the total of the wheat is unknown, mention of the measure removing the ignorance; and "from this granary, every sa' for a dirham" is not valid on the correct view, for the merchandise remains unknown and mention of its counterpart does not remove it from ignorance. Note: these fill-expressions apply to the object in liability; if it is present ("the fill of this sack of this wheat"), it is valid on the correct view, there being no gharar and no room for misconduct in performance (Rawdat al-Talibin, 3/24-26; al-Majmu', 9/273; al-Iqna', 2/282; Kifayat al-Akhyar, 287-288; Nihayat al-Muhtaj with Hashiyat al-Shubramullisi, 3/467-471; al-Dibaj, 2/19-21; Hashiyat I'anat al-Talibin, 3/20; al-Najm al-Wahhaj, 4/42-43).
Hanbalis: the merchandise must be known to seller and buyer, for ignorance of the merchandise is gharar, prohibited. Knowledge is obtained first by viewing contemporaneous with the contract, establishing the whole merchandise if the viewed part indicates the rest (the plain garment: viewing one face suffices; the visible surface of homogeneous granaries of wheat, dates and the like, and the contents of bowls and sacks of one homogeneous liquid or grain), or by a partial view indicating the rest; the embroidered garment requires full viewing; knowledge by touch, smell or taste equals viewing, failing other knowledge. Sale of the sample (unmudhaj, what indicates the thing's description, like a sa' of wheat shown) is not valid, for lack of viewing the merchandise at the contract; and what is known by a description sufficient for salam is sold like salam (al-Incaf, 4/294-296; Kashshaf al-Qina', 3/187-190; Minar al-Sabil, 2/12; Sharh Muntaha al-Iradat, 3/136-138; al-Rawd al-Murbi', 1/543-544).
The jurists disputed sale by description or prior viewing, or without viewing or description, and the sale of absent goods, and of present goods not seen. Here are the opinions gathered, then each school in detail:
Ibn Rushd (Bidayat al-Mujtahid, 2/174-175) summarizes: merchandise is of two kinds: present and visible, without disagreement over its sale; and absent or hard to view, the object of the dispute. Some say sale of the absent is unlawful in all circumstances, described or not: this is the more famous of al-Shafi'i's two opinions and the text among his disciples, including by description. Malik and most Medinans: sale of the absent by description is lawful if its absence does not risk changing its description before taking possession. Abu Hanifa: sale of the absent object is lawful even without description, with the option of viewing for the buyer; sale by description has the option of viewing as a condition according to them, even if the object arrives as described, while with Malik it becomes binding; with al-Shafi'i the contract is not concluded in either case. It is related in the Maliki madhhab that sale of the absent without description is lawful under a condition of the option of viewing; this occurs in the Mudawwana, and Abd al-Wahhab rejected it as contrary to our principles.
The cause of the dispute: is the deficiency of description-knowledge compared to sensory knowledge an effective ignorance making the sale aleatory, or a tolerated ignorance? Al-Shafi'i saw much gharar in it; Malik a slight, excused gharar; Abu Hanifa held that the option of viewing removes gharar even without viewing. According to Malik, description stands in place of viewing given absence or the difficulty of unfolding, and the feared harm of repeated unfolding: he thus permits sale upon the register (barnamij) by description, but not of the weapon in its sheath nor the folded garment until unfolding. Abu Hanifa argued by the report of Ibn al-Musayyab: the Companions of the Prophet wished that Uthman ibn Affan and Abd al-Rahman ibn Awf trade, to know which was more serious in commerce; Abd al-Rahman bought from Uthman a horse against one of his lands, for forty thousand, or four thousand, and the full report follows: the hadith proves sale of the absent in all its forms, and Abu Hanifa requires mention of the genus. To sale by description or with the option of viewing is added another gharar: does the object exist at the moment of contract? Hence they require a near absence, unless the object is safe from change, like real estate; hence Malik's permission of sale upon prior viewing for near, stable things.
Hanafi detail: whoever buys what he has not seen, the sale is valid, with or without description, like one who buys oil in a skin, wheat in a sack or a garment in a bundle, both agreeing it exists in the seller's property, without the buyer seeing any of it: the sale is valid, for the Prophet bought what he had not seen, and the buyer has the option upon viewing until invalidation appears, based on Abu Hurayra's hadith: "Whoever buys a thing he has not seen has the option when he sees it" (narrated by al-Bayhaqi in al-Kubra, 10206, and al-Daruqutni 3/4, with a contested chain: al-Daruqutni notes that the transmitter Umar ibn Ibrahim, called al-Kurdi, fabricates hadiths, and Ibn al-Qattan writes that the reporter Dahir ibn Nuh is unknown and perhaps the forger; see Nasb al-Raya, 4/9). The merchandise being one of the two compensations, its viewing is not required for conclusion, like the price's; the option arises upon viewing: even if the seller ratifies before viewing, the purchase does not bind him, and the buyer's option does not fall by explicit waiver before viewing, unlike the conditional option and the option of defect, established by intention; the object becomes binding on him only after viewing, and if the option is stipulated for the seller, the sale does not bind him before viewing but binds after, there being no third-party right, his consent before viewing not removing the option.
Sale of the absent by description or prior viewing carries the gharar of existence at the contract: hence a near absence is required, unless safe, like real estate; and Malik permits sale upon prior viewing for near things unlikely to change. Shafi'is: sale of the absent object whose genus or species is unknown is not lawful, based on Abu Hurayra's hadith reporting the prohibition of gharar sale, which is great here. If genus and species are known ("the Marw garment in my sleeve", "the Zanji slave in my house", "the grey horse in my stable"), two opinions: the later, the relied-upon one, invalid, for gharar and a sale like salam; the earlier: valid, with the option upon viewing. Ibn Abi Mulayka reported that Uthman bought from Talha a plot of Medina land in exchange for Kufa land: Uthman said "I sold you what I had not seen", Talha replied "the viewing is mine, I bought sight-unseen and you saw what you bought"; they went to arbitration before Jubayr ibn Mut'im, who ruled the sale valid and the viewing for Talha, for he had bought sight-unseen and the contract concerned a determined object, like marriage. On this opinion, validity requires no description; it is the text in the recent chapter of exchange (sarf), founded on viewing, with the option upon viewing (al-Bayhaqi, al-Kubra, 10206; al-Daruqutni, 3/4; Nasb al-Raya, 4/9).
Whoever sells what he has not seen, for example an unseen inheritance, has no option: the text established it for the buyer, fearing the merchandise change from what he supposes and sparing him underprice; were it established for the seller, it would be by fear of excess of qualities, which does not ground an option, like one who sells a slave saying he is ill and finds him healthy: the sale binds him, without option. This ruling holds for selling an object for a price, the ordinary sale; if the sale is object for object (barter) and neither saw what he receives, each has the option. The required viewing is any means producing knowledge of the intended thing; viewing the other parts without the intended one does not suffice to remove the option.
Whoever saw a thing and then bought it after a while: if it is in the viewed state, no option; if he finds it changed, he has the option, for that viewing was not marked by its descriptions, he is as if he had not seen it. If the parties dispute the change, the word is the seller's with his oath, for change is an accident (defect or metamorphosis) alleged by the buyer, denied by the seller who holds to the origin; unless the interval is long: the word then goes to the buyer, for the outward testifies for him, things changing with time. If the seller claims the buyer saw and the latter denies, the word is the buyer's with his oath, for the alleged viewing is an accident, the buyer denies it, and the word belongs to the denier with an oath.
Viewing part of the merchandise: if it consists of differing items (garments, animals, melons, quinces, pomegranates and the like), the option falls only by viewing the whole; if measured or weighed (shown by sample) or counted in like items (walnuts, eggs), viewing part annuls the option for the whole, the aim being knowledge of the description; unless he finds it inferior to the sample, and he has the option. If the merchandise is underground (carrot, turnip, onion, garlic, radish after sprouting), the sale is valid if its presence underground is known; after extracting an approved sample, if the sale is by measure (onion) or weight (garlic, carrot), the option falls, by necessity and prevailing practice; if by count (radish), viewing part does not remove the option (al-Jawhara al-Nayyira, 3/48-49; al-Lubab, 1/366; Kanz al-Daqa'iq, 210; Majma' al-Bahrayn, 276; Khulasat al-Dala'il, 2/41-43; Mukhtasar al-Wiqaya, 2/49-51; Bada'i' al-Sana'i', 5/292; al-Mabsut, 13/69; Sharh Fath al-Qadir, 6/335; al-Fatawa al-Hindiyya, 3/75). The Malikis: sale upon viewing part of a homogeneous measured or weighed good (cotton, flax, wheat, barley) is valid, viewing part sufficing for knowledge of the description, whether the sale is outright or with option; unlike the appraised item (a garment), unless unfolding destroys it (a fine veil). Sale upon viewing the husk (pomegranate peel, walnut shell, almond, melon) is lawful without breaking one open.
Sale upon the register (barnamij), a notebook describing the contents of a bundle of garments, is lawful by necessity, given the hardship of unfolding; description stands in place of viewing: if the contents match, the sale binds; otherwise the buyer is optioned: if the shortfall is small, it is deducted from the price accordingly; if it exceeds half, the sale does not bind him; if there is surplus, the seller becomes partner in the surplus. If the buyer took it then was absent, claiming it is less than the register states, the seller swears the contents match, and his word prevails; otherwise, the buyer swears he substituted nothing and that it is the very object bought, and he is bound.
Sale by description and prior viewing: sale of merchandise upon the description it has from one other than the seller, or from him, is valid if the merchandise is absent from the contract session, even within the town; its presence is not required. If it is present, sale by description is not valid for bindingness and viewing is required, for ease of knowing reality; unless opening it harms or spoils: sale by description is then valid, and if the object matches the sale binds, otherwise the buyer returns it. Outright sale or sale with option upon prior viewing is valid if the thing does not normally change until the contract, even if present in the session; this varies with things (fruit, garment, animal, real estate): if it normally changes, outright sale is not lawful, sale with the option of viewing is, if the distance is not great; if very great, like Khurasan in the East relative to Ifriqiya in the West, sale is not lawful, except with the buyer's option upon viewing; sale by description or prior viewing is lawful in all circumstances if no cash payment is required; otherwise not, for it oscillates between sale of the present thing and sale of the price.
Summary: sale of the absent presents twelve forms, from three crossed criteria: by description, by prior viewing, or without either; in each case, outright or with the option of viewing; in each case, very distant or not. With the option, it is lawful in all circumstances unless something invalidates it; outright, it is lawful, except what is sold without either (near or far, for ignorance of the merchandise), or normally subject to change, or very distant; and if it is present in the session, viewing is required, unless opening is burdensome or spoils it, in which case it is sold by description or upon the register. Guarantee: if real estate sold as absent reaches the transaction intact, defect is upon the buyer; otherwise upon the seller, unless a clause provides otherwise. Taking possession falls to the buyer; spontaneous payment is lawful in all circumstances, and by condition if the object is real estate sold by description or prior viewing, however distant, or a non-real-estate near at hand (a day, no more), for change is not feared (al-Tamhid, 13/14-15; al-Istidhkar, 6/423-467; al-Kafi, 1/329; Bidayat al-Mujtahid, 2/174-175; Hashiyat al-Dasuqi with al-Sharh al-Kabir, 4/37-39; al-Taj wa-l-Iklil, 3/307-312; Mawahib al-Jalil, 6/104-112; Tahrir al-Mukhtasar, 3/482-488; Sharh Mukhtasar Khalil, 5/34; Bilghat al-Salik, 3/21).
Following the Shafi'i case: whoever saw the merchandise before the contract, then bought it without seeing it again: if it does not change (real estate and the like), the sale is valid, for viewing is sought only for knowledge, attained by the prior viewing; if he finds it in its state, he keeps it; if he finds it deficient, he returns it, for he bound himself only upon that state; in dispute over change, the word goes to the buyer, for the price is taken from him without his consent, which is not permitted. If the object may or may not change, two views: invalid, being doubtful about its remaining as described; or valid, which is the madhhab, the origin being persistence, by analogy to the unchanging object.
The blind person's sale: if he sells or buys a thing he has never seen, it is not valid according to the madhhab, for sale of the unseen is accomplished by viewing, which the blind cannot have; nor can he delegate the option of viewing, for that option is established by the Law and admits no delegation, like the option of session, unlike the conditional option. The Hanbalis specify: the blind sells and buys validly by description sufficient for salam, and if he finds the deficiency of description he has the option of non-conformity like the sighted, a fortiori; and validly by what allows him to know the merchandise without sight: smell, touch, taste, or if he saw it before losing his sight, within a span of no apparent change (Kashshaf al-Qina', 3/187-190; Minar al-Sabil, 2/12; Sharh Muntaha al-Iradat, 3/136-138; al-Rawd al-Murbi', 1/543-544; al-Incaf, 4/294-296; Majmu' al-Fatawa, 29/36; al-Ta'liqa al-Kubra, 3/7-34).
Viewing part suffices if it indicates the rest: the surface of a granary of wheat and the like, the walnut, the pressed date, the top of liquids in their vessels, the top of dates in the basket, food in its dishes, bare cotton even in its bundle, for the inner is like the outer; no option if the inner is seen, unless deficient relative to the visible. Unlike a granary of pomegranates, quinces and melons, which indicates nothing of the rest: each unit must be seen, and seeing one face of the melon equals sale of the absent, though homogeneity be the likelier, like the plain garment of which one face suffices. For grapes and peaches, viewing the top does not suffice, so great is the variation, unlike grains. If the thing varies and viewing the rest is hard (the walnut in its lower shell), its sale is valid, viewing the inner being hard, like viewing wall foundations. The homogeneous sample (grains) dispenses with viewing the rest, and it need not be mixed into the merchandise beforehand: "I sell you the wheat of this house with the sample" is valid, even without prior mixing; "of this type, such and such" is not valid, for he saw neither the merchandise nor part of it.
Viewing each thing according to what suits it: for houses, viewing roofs, inner and outer walls, bath and latrine; for the orchard, the irrigation channels; and the access road and the mill watercourse, given their bearing on the purpose. For mounts, the front, the rear and the legs, and the saddle and bags are lifted; the horse's gallop is not required on the correct view. For the folded garment, unfolding, and if plain, viewing one face suffices. The soundest view with al-Shafi'i: description of salam type or description received by mass transmission does not dispense with viewing, for it yields what words cannot reach; the other view: it suffices and the buyer has no option, the fruit of viewing being knowledge and description yielding it (al-'Umm, 3/40; al-Muhadhdhab, 1/263-265; Rawdat al-Talibin, 3/24-26; al-Majmu', 9/273; al-Iqna', 2/282; Mughni al-Muhtaj, 2/438-442; Kifayat al-Akhyar, 287-288; Nihayat al-Muhtaj with Hashiyat al-Shubramullisi, 3/467-471; al-Dibaj, 2/19-21; al-Najm al-Wahhaj, 4/42-43).
Hanbalis: sale is valid by viewing, contemporaneous with the contract (of the whole object, without disagreement; of a part indicating the rest: valid), or prior. Sale of the sample is not valid on the correct view of the madhhab; what is known by touch, smell or taste equals viewing. Whoever buys what he has not seen without description, or saw without knowing what it is, or receives a description insufficient for salam: the sale is not valid so long as he has not seen the merchandise. If a description sufficient for salam is given, or the viewing done, then the contract follows after a span with no apparent change, the sale is valid on the soundest of the two opinions; if the span admits change as much as its absence, the contract is not valid. Fast-perishing merchandise (fruit), middling (animal) or durable (real estate) is assessed by its type, even absent and far, if the seller can bring it. If the buyer finds it as the prior viewing showed, no option; if changed, he rescinds after delay, like the option of defect; deficiency of description grounds the option of non-conformity, except signs of satisfaction (price reduction and the like), which remove it; riding the sold mount on the way back to the seller does not remove the option, for it does not indicate consent to the change. Whoever annuls his right of return has no indemnity (arsh) on the soundest view: he chooses between returning and keeping without payment, unlike sale with a condition of description, which grants the indemnity for the defect. In dispute over description or change, the word is the buyer's with his oath, the origin being his innocence of the price. If the merchandise spoils in the interval between viewing and contract, or changes in it certainly, probably or possibly, the contract is not valid, for loss of its condition or by doubt. If the seller says "I sell you this mule for such", the buyer replies "I buy it", and the object turns out a horse or donkey, the sale is not valid, for lack of knowledge and of viewing establishing the merchandise.
The blind person's sale by description is valid, like salam, with the option of non-conformity like the sighted; and valid by smell, touch and taste, or by viewing before blindness within a span of no change. Whoever buys what he has not seen and without description: contract not valid; if he saw without knowing what it is: sale not valid. The non-seeing seller's ruling equals the buyer's. Sale by description is of two types: sale of a determined object, absent ("I sell you my Turkish slave" with description) or present but covered (a veiled bondswoman, goods in their chests): the contract is rescindable by return of the object, as for a defect, without right to replacement, since the contract fell upon that very object; any contrary condition invalidates the contract; the contract is also rescinded if the object perishes before taking possession, for loss of the contract's locus; splitting is permitted before taking price and object, and description may precede the contract in the sale of bodies, like viewing; in salam, by contrast, description no more precedes the contract than viewing; likewise in sale of goods in liability: "I wish to make you a salaf of a kur of wheat (an Iraqi measure) described" then, later, even after a long span, "I have made you a salaf of a kur of wheat upon the mentioned descriptions", paying the price before delivery: it is valid, the contract standing through knowledge of the object. The second type is sale of a described, undetermined thing ("a Turkish slave"), with a description sufficient for salam: it is in the meaning of salam without being one, lacking deferral; if the seller delivers a slave other than described, the buyer returns it, and if he delivers the described one with a defect, the return does not void the contract, which did not fall upon that object; taking the object or the price in the contract session is required, and it must not be worded with salam or salaf (see the Hanbali references above).
Salam is lawful by the Book, the Sunna, consensus and reason; it is a contract legislated against analogy, being the sale of the non-existent, but analogy was abandoned before the Book, the Sunna and consensus.
"O you who believe, when you contract a debt for a fixed term, write it down"
Surah Al-Baqarah, 282
Ibn Abbas said: "I testify that salaf guaranteed until a fixed term was made lawful by Allah in His Book and that He permitted it", then he recited the verse (narrated by al-Shafi'i in al-Musnad, 1314, al-Hakim 2/286, al-Bayhaqi 6/18; a sahih hadith).
As for the Sunna, Ibn Abbas narrated: "The Prophet came to Medina while they were making salaf on dates for one or two years; he said: whoever makes salaf on dates, let him make it on a known measure, a known weight, until a known term" (al-Bukhari 2240, Muslim 1604). Muhammad ibn Abi al-Mujalid reported: Abdallah ibn Shaddad and Abu Burda sent me to Abdallah ibn Abi Awfa to ask: did the Companions of the Prophet make salaf on wheat in the Prophet's time? He said: we made salaf on the nabit (raisins) of the people of Syria against wheat, barley and oil, in known measure, until a known term; he was asked: to those who possessed the produce? He said: we did not ask them that; then he was sent to Abd al-Rahman ibn Abza, who said: the Companions of the Prophet made salaf in his time and were not asked whether they had crops (al-Bukhari 2128).
As for consensus, a great number of scholars transmitted it:
As for reason: the object of sale being one of the contract's two compensations, it may settle in liability like the price; and people need it: farmers, fruit growers and traders need spending on themselves and their produce until completion, and spending may be lacking: salam is therefore permitted them, that they be enriched and the delivered good obtained cheaply. It is also called the sale of the penniless (bay' al-mafalis), legislated for their need of capital, for the greater number of salam sellers (al-Mughni, 4/185).