Islamic Fiqh > Financial transactions > Financial contracts in Islam > Financial contracts, part 2
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Updated on 26 September 2026 at 7:12 PM
This second part of the chapter on the general rules of financial contracts sets out the conditions of the salam contract (a sale with deferred delivery) according to the four Sunni schools, then the rules governing its delivery, its amendment and its cancellation. Each condition is established from the Quran, the Sunna and the juridical rationales given by the jurists. Positions are cited school by school, with their classical references.
The rule is that the capital must be delivered before the two parties separate in a way that ends the session option (khiyar al-majlis); if both sleep in their session, or stand up and walk away together, the option is not lost.
This is the view of the majority of jurists: the Hanafis, Shafi'is, Hanbalis, and the Malikis according to one opinion. It is required that they not separate except after taking possession of the capital, whether or not such a condition was stipulated between them; if they separate before the capital is taken, the salam is invalid between them, lest it become a sale of debt for debt, in line with the Prophet's words: 'Let the one who lends, lend in a known measure', lending (islaf) being an advance payment, which requires acceleration. The very name salam derives from the handing over of the capital; if that is delayed, it is not a salam and is invalid, for contract names derived from meanings require those meanings to be realized.
Second rationale: the salam is the taking of the immediate in exchange for the deferred, so one of the two exchanges must be advanced while the other is deferred, so that the contract fulfills its purpose. Acceleration occurs only through taking possession in the session, which is its most complete form; the Law however counted the hours of the session as the contract's moment, by way of facilitation, as in the currency exchange (sarf). Third rationale: the salam was permitted only for the need of the one who receives its object, and that need is fulfilled only when the capital reaches him; the session moment was therefore made the contract moment, and the contract is spoiled by omitting the taking of the capital in the session.
The Malikis, in the well-known view, allow the capital to be delayed after the contract by up to three days, because the number three is excepted from the prohibited in the hijra (one whose home is elsewhere may stay in Mecca three days), and mourning beyond three days is forbidden for anyone other than a wife: what approaches a thing is given its ruling. It is therefore required that the capital be actually taken in the session, or its equivalent, such as a three-day delay; similarly, a man owed a debt may grant a delay of a day or two gently, even as a condition at the contract, where delivery is stipulated in another town; otherwise such delay is not allowed, for it would be precisely deferred for deferred: the capital must be taken in the session, or near to it, whether the capital is a tangible good, a commodity or a fungible.
If he delays the capital beyond three days: if by condition, the salam is void by consensus, whether the delay is very long, the term of the object having arrived, or not very long, its term not having arrived. If without condition, Malik has two views; the more famous, and the relied-upon one, is invalidity, while the opposite of the mashhur holds the salam valid, whether the delay is very long or not.
It is also valid for the capital of the salam to be the benefit of a specific thing for a specific period, as when one says: 'I salam to you the dwelling of this house of mine, or the riding of this mount of mine for a month, for an irdabb of wheat which I take from you in such-and-such a month.' The origin of the disagreement between the majority and the Malikis is whether this delay counts as a debt or not, and whether what approaches a thing receives its ruling or not.
Taking part of the capital: if the parties separate before part of it is taken, is the contract void altogether or only for what was not taken? The Hanafis, the Shafi'is in the sounder view and the Hanbalis in the madhhab hold: it is void only for what was not taken; the part taken stands, and the ruling is that of one who buys two things and one perishes before he takes it. The Malikis, the Shafi'is in the other view and the Hanbalis in the other view hold: it is void in its entirety (Al-Mabsut, 12/144; Bada'i' al-Sana'i', 5/202-203; Al-Mughni, 4/197; Kashshaf al-Qina', 3/355, and other sources).
Second condition: the salam object must be a debt in the dhimma, deferred to a known term. There is no disagreement among the scholars that the deferred salam is valid, this being established by text and consensus. The immediate salam, however, is not valid with the majority of jurists, the Hanafis and Malikis, nor with the Hanbalis.
The Prophet, arriving in Medina, found the people salaming in dates for one and two years, and he said: 'Whoever salams in dates, let him salam in a known measure and a known weight, to a known term.'Reported by al-Bukhari (2240) and Muslim (1604), from Ibn Abbas
The Prophet used a general expression ('whoever salams'), and he placed the term alongside the measure and the weight by conjoining it with them: just as the contract is not valid without measure and weight, the term must likewise be taken into account. The salam was only permitted as a concession of indulgence (rifq), and that indulgence is not obtained without a term, as with manumission by writing; the immediate salam removes it from its name and meaning, for it is called salam and salaf because one of the two exchanges is advanced and the other delayed. The Lawgiver made this contract easy only for the need calling for it, and where what is sold is present immediately, there is no need for the salam. Moreover, since delivering the capital first is obligatory, an immediate salam would nullify that rule, the exchange being resolved by equalizing the two parties in ownership and delivery; and the salam is a trade contract built on hardship: its maker would be demanded delivery right after the contract, which he cannot do, hence restriction to deferral.
Qadi Abd al-Wahhab said: the salam was permitted only as an accommodation between the two contracting parties, the buyer advancing the capital to secure the bargain, and the seller accepting the advance for the indulgence he gains in delay; when the indulgence ceases, the allowance ceases, and it becomes like the loan, whose allowance, once gone, voids it (Al-Ishraf, 2/517, no 840). Al-Kasani said: the Prophet made observing the term in the salam obligatory just as he made observing the quantity so; the immediate salam leads to dispute, for the salam is the sale of the destitute (mafalis), and the seller is presumably unable to deliver while the buyer would demand delivery; the term was therefore required so that demand becomes possible only at its due time, avoiding the dispute that leads to rescission and harm (Bada'i' al-Sana'i', 5/212). Ibn al-Qattan al-Fasi said: the jurists agreed unanimously that the salam without deferral is invalid, except al-Shafi'i, who allowed it (Al-Iqna', 4/1821, no 3534). Ibn Hubayra said: Abu Hanifa, Malik and Ahmad held it invalid, and al-Shafi'i held it valid (Al-Ifsah, 1/410).
The minimum term was also disputed. With the Hanafis in the madhhab it is a month, being the shortest of deferrals and the longest of immediacies: one who swears to pay at the shortest term and pays before the full month fulfills his oath. In another Hanafi view it is three days, by analogy with the term of the option (khiyar) fixed by the Sunna at three days. In a third view it is more than half a day, for the advanced is what is taken in the session and the deferred what is taken after it, and the session does not usually last more than half a day. The Malikis allow a term of one or two days in a matter whose markets rise and fall within such a time, this being the well-known position of the school; some of Malik's companions allowed it, and it is also narrated from Malik that three days and more are allowed without regard to markets, Ibn Abd al-Barr holding the first as his madhhab (Al-Kafi, 1/337-338). Ibn Rushd states (Bidayat al-Mujtahid, 2/153): for what is demanded in the very town of the salam, Ibn al-Qasim held the relevant term to be that of market variation, about fifteen days; Ibn Wahb narrated from Malik the validity of two or three days; Ibn Abd al-Hakam allowed it up to a single day; and for what is demanded from another town, the term is the distance between the two towns, long or short. The Hanbalis require a term with a customary occurrence, such as a month or the like, or half a month in one view, the term being considered only to realize the indulgence for which the salam was instituted.
The Shafi'is, Abu Thawr, Ibn al-Mundhir, some Malikis and Ibn al-Qayyim among the Hanbalis allow the immediate salam: it is a contract valid when deferred, therefore valid when immediate, like the sales of present goods; if allowed when deferred, its allowance when immediate is stronger and farther from gharar; there is no evidence requiring the term, which must therefore be negated; and if the term aimed at securing the capacity to deliver, that capacity is already secured by the delivery of the capital, unlike immediate manumission by writing: the slave leaves his master's hand through the kitaba without anything entering his ownership, so that he is not able to deliver the price of his manumission.
As for the Prophet's words: 'Whoever salams in something, let him salam in a known measure and a known weight, to a known term', they do not mean a command to defer the salam and forbid the immediate one; they mean: whoever salams in a measured thing, let him salam in a known measure; in a weighed thing, in a known weight; and if to a term, then to a known term. Otherwise the hadith would also command the salam to be in a measured or weighed thing, and the salam would be forbidden in the counted and the spread (madru'), whereas the rule across the three headings is one.
Condition of the immediate salam with the Shafi'is: the object must exist at the time of the contract; what exists only later, like dates out of season, may be salamed only with deferral. The benefit of turning from the ordinary sale to the immediate salam is the validity of the contract despite the absence of the goods: the goods may not be present and visible, so their sale is invalid; if the seller defers delivery to bring them, they may be lost to the buyer, who cannot then rescind, since his claim hangs on the dhimma; he therefore turns to the salam, describing the attributes, and the goods are brought so the contract is valid and binding.
There is no disagreement among the scholars that the term must be known, by Allah's words: 'O you who believe, when you contract a debt for a fixed term, write it down' (Surah Al-Baqarah, 282), and by the Prophet's words cited above (al-Bukhari 2240; Muslim 1604). Knowing it prevents dispute, and ignorance of it prevents the delivery owed by the contract: the seller would demand delivery within a short time and the buyer within a long one.
As for its form: the term must be known by years, months or days, or by a known time, such as the arrival of such a month or such a feast. If he mentions an unknown term, such as the harvest (hasad), the grant ('ata'), the arrival of the pilgrims and the like, it is not valid; this is the view of the majority: Hanafis, Shafi'is and Hanbalis in the madhhab, following Ibn Abbas's words: 'Do not sell for the harvest or the diyas (yellowing of the dates), and do not sell to one another except for a known term', that is, a known month, the harvest varying, drawing near and receding, like the arrival of Zayd.
The Malikis, and Ahmad in one narration, allow the salam until the harvest and the diyas, for Ibn Umar used to salam until the grant; it is a term tied to a time known in custom, not varying greatly, like 'the beginning of the year'. Imam al-Qurtubi said: that the term be known admits no disagreement in the ummah, for Allah and His Prophet described it so; Malik alone, among the jurists of the great cities, allowed sale until the diyas and the harvest, deeming it known (Tafsir al-Qurtubi, 3/381; see also Al-Mabsut, 12/126; Sharh Fath al-Qadir, 7/86-87; Al-Dhakhira, 5/251-254; Rawdat al-Talibin, 3/229; Al-Mughni, 4/193-194, and other sources). The chain of Ibn Abbas's statement is sound, all its men trustworthy; as for the hadith of Ibn Umar salaming until the grant, it is weak: reported by Ibn Abi Shayba in al-Musannaf (6/71, no 20628), with Hajjaj ibn Arta in its chain, a mudallis who did not state hearing.
The jurists agree: the object of the salam must be of what usually exists at the due time of the term, since its delivery is then obligatory and the capacity to deliver is a condition; no disagreement among the jurists on this. For if it is so, delivery is possible at its time; otherwise the object is presumably nonexistent at the term and cannot be delivered, like the sale of the runaway slave, indeed more strongly: the salam tolerates some gharar out of need, so it does not tolerate another, lest uncertainty multiply. One therefore does not salam in grapes or fresh dates for February or March, nor toward a period when its existence is not assured, such as the beginning or end of the grape season when it exists only rarely.
The majority (Malikis, Shafi'is, Hanbalis) does not require the object to exist from the contract to the delivery: it suffices that it exist at the time of delivery, per the hadith of Ibn Abbas cited (al-Bukhari 2240; Muslim 1604): the Prophet did not mention existence, though he would have mentioned it had it been a condition, and he would have turned them away from salaming one and two years, which implies the object's disappearance mid-year; the object stands in the dhimma and usually exists at its due time, so salam in it is valid as for the existent; people contract relying on hope of safety, without being charged to foresee what may or may not happen.
Ibn Battal said: if the object exists all year except the day of taking, and one salams for a year, this salam is void by consensus, even if it existed at the contract and all year, for at the term and the taking it is nonexistent; thus it is known that the existence considered is that of the time of taking, not of the contract. Evidence: in the Prophet's time they salamed in fruit for one or two years, though the term necessarily includes a fruitless period, winter, and the Prophet confirmed them in that without objecting to salaming a year and more (Sharh Sahih al-Bukhari, 6/369). As for his prohibition of selling dates until their quality appears, we bear it as: the sale of the date itself is allowed only after its quality appears; in the salam there is no fruit present with the seller at the contract truly deserving the name of sale; and the prohibition hadith is tied to the salam, its meaning being: do not sell dates before their quality appears, except as salam, as shown by the hadith of Ibn Abbas: they salamed two or three years, before the fruit formed; and if salam in fruit is valid, salam in fresh dates is valid, these not existing the rest of the year as the dry date does.
The Hanafis say: the salam is not valid while the object does not exist from the contract to the delivery, even if it exists at the contract and is absent at delivery, or absent at the contract and present at delivery, or absent between the two by disappearing from people's hands, like dates, fruits and milk: for the Prophet forbade selling fruits before their quality appears, and this prohibition extends to the salam; the contractor's capacity to deliver the object is a condition of validity, as in the sale of a present good, the deliverer being the contractor himself. But the object's existence at its due time is imaginary, and no capacity to deliver is established on the imaginary; moreover, every moment of the period may be the term, through the seller's death, hence the requirement of existence.
I said to Abdallah ibn Umar: may I salam in palm trees before they yield? He said: no. I said: why? He said: a man salamed in a palm garden in the time of the Messenger of Allah before the palms yielded; the palms yielded nothing that year. The buyer said: it is mine until they yield. The seller said: I sold you only this year's palms. They took their dispute to the Messenger of Allah, who said to the seller: 'Did he take anything from your palms?' He said: no. He said: 'By what do you make his money lawful? Return to him what you took from him, and do not salam in palm trees until their quality appears.'Weak hadith, reported by Ibn Maja (2284)
Al-Bukhari reports from Abu al-Bakhtari: I asked Ibn Umar about salam in palm trees; he said: the sale of palm trees was forbidden until they are sound, as was the sale of silver for gold deferred against immediate (nasa'an bi-najiz).
The Prophet forbade the sale of palm trees until one can eat from them or (birds) eat from them, and until they are weighed.Authentic hadith, reported by al-Bukhari (2247)
It is thus established from these two great companions, references in knowledge and investigation, that they understood from the prohibition of selling palms before ripeness the prohibition of the salam. And if one salams in what may disappear from people's hands, like fresh dates: if the term is set during the period of existence, before the disappearance, it is valid; if the term is set after the disappearance, it is not valid (Mukhtasar Ikhtilaf al-Fuqaha of al-Tahawi, 3/9; Al-Mabsut, 12/134-135; Bada'i' al-Sana'i', 5/211; Bidayat al-Mujtahid, 2/154, and other sources).
Impossibility of delivering the object at the term: if one salams in what usually exists at the term, but delivery becomes impossible, either through the absence of the buyer, or through his incapacity (failure of the crop that year), or partially, the jurists differ. The majority, Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab, holds the salam valid as it stands, and the buyer has the choice between:
This is because the contract is valid and only the delivery became impossible, like one who buys a slave who flees before the taking; disappearance before the taking equals a change of the object before the taking and entails the option. With the Hanbalis, one view rescinds the contract by the impossibility itself, the object being the year's fruit, as shown by the obligation to deliver it: if it perishes, the contract is rescinded, like one who sells a qafiz of greens (sabra) that perishes. Ibn Qudama said: if he prefers rescission for the lost part without the existing part, he may, for the defect arises after the contract's validity and voids it only in part, like one who sells two sabra and one perishes. Another view: rescission applies only to the whole, or he waits; the disagreement concerns partial rescission of part of the object. If one holds that rescission occurs by the impossibility itself, it applies to the lost part without the existing part, a defect befalling part of the object not voiding the whole, the buyer keeping the option of rescission for the existing part (Al-Mughni, 4/196; Tahrir al-Mukhtasar, 4/60).
The jurists agree: the quantity of the object must be known by measure for what is measured, weight for what is weighed, number for what is counted, and cubit (dhira) for what is measured in length, per the Prophet's words (the hadith cited, al-Bukhari 2240; Muslim 1604). Ignorance of the quantity leads to dispute and ruins the contract, for the object is a counter-value not seen, hanging on the dhimma: its quantity must be known like the price's; and no disagreement among the jurists is known on this.
The quantity must be expressed in measures or weight units known to the public; estimation by a known vessel or by a specific but unknown scale (sanj) is invalid, for that instrument may perish and the quantity becomes unknowable: needless gharar in the contract. Ibn al-Mundhir said: all the scholars whose reports we preserve agree that salam in food with a qafiz of unknown capacity is not permitted, nor in a garment by the cubit of so-and-so, for if the measure perishes or that man dies, the salam is void (Al-Ishraf, 6/106; Al-Ijma', 497). If he designates a man's vessel or scale known to the public, it is valid; if not known, it is not.
Sown produce (madru') must imperatively be gauged by the cubit, without disagreement among the scholars, as Ibn al-Mundhir reports: salam in garments is valid with a known cubit, with known description of length and width, fineness, weave quality and good workmanship, after relating it to such a town, to a known term. This is the view of al-Shafi'i, Malik, al-Awza'i, al-Thawri, Ahmad, Abu Thawr and the partisans of opinion (ashab al-ra'y) and their followers; this permission is also narrated from Ibn al-Musayyib, al-Sha'bi and al-Qasim ibn Muhammad. Abu Bakr (Ibn al-Mundhir) said: I know of no divergence from their view, and this is what I say (Al-Ishraf, 6/110; Al-Ijma', 499).
The jurists differ: is the salam valid in a measured thing weighed, or a weighed thing measured? The Hanafis (one view), the Shafi'is (weak view) and the Hanbalis (in the madhhab) require the thing's own standard: no salam in a measured thing by weight nor in a weighed thing by measure, per the Prophet's words cited; the object is a good whose quantity must be known, so it is not admitted otherwise than by its original standard, like selling certain fresh dates for others.
It is likewise invalid in counted fruits, like pomegranates and quinces, even by weight with the Hanbalis. But with the Hanafis in the madhhab, the Shafi'is in the madhhab and Ahmad in one narration, salam is valid in a measured thing by weight (wheat and barley by scale) and in a weighed thing that can be measured: the aim is knowledge of the quantity, unlike the ribawi items where worship (ta'abbud) predominates; measure and weight are required only to make the quantity known, not to negate riba, for between the capital and the salam object there is no riba, the delivered object being legally the obliged equivalent of the capital.
Al-Kasani said: if the object is measured and its quantity known by a known weight, or weighed and known by a known measure, it is valid; the condition is knowledge of the quantity by a standard whose loss is not feared, and it is attained. It is otherwise with selling a measured thing against a measured thing by weight, at equal weights, or a weighed thing against a weighed thing by measure, at equal measures: this is not allowed unless equal; for the things for which the Law required measure and weight in the sale of the present, the text is established, and selling them otherwise would be conjecture (mujazafa) (Bada'i' al-Sana'i', 5/208).
The Malikis: the condition of the salam is that the object be regulated by what the people's custom, in the region of the contract, uses to regulate it: measure, weight or number. Wheat is usually regulated by measure, some weighing it: salam in it is valid by measure and weight; meat is usually regulated by weight: salam in it is valid by weight; the pomegranate is usually regulated by number, some weighing it: salam in it is valid by number and weight (Minhaj al-Jalil, 5/361; Tahrir al-Mukhtasar, 4/49; Sharh Mukhtasar Khalil, 5/211; Al-Taj wa-l-Iklil, 3/577, and other sources).
The salam is not valid in what has no definable attributes: this admits no disagreement among the scholars. Al-Nawawi said: they agreed on the condition of describing the object by what defines it (Sharh Sahih Muslim, 11/41), for the object is a counter-value hanging on the dhimma, which must be known by description like the price; and knowledge is a condition of the goods, obtained by sight or description: sight being impossible here, description is necessary.
The attributes are of two kinds: those whose stipulation is unanimous, and those disputed. The unanimous attributes are three:
These three attributes are indispensable to every salam object, without disagreement among the scholars, to remove ignorance: ignorance of the type, genus or attribute leads to dispute and ruins the contract (the hadith cited). It is however not required, by agreement, to exhaust the attributes nor to approach them all: it is impossible, and it may make delivery impossible, the object with all those qualities becoming rare at the term. One must therefore be content with the apparent attributes that visibly change the price; if one multiplies the qualities to a state where the object becomes rare, the salam is void, one of its conditions being the general existence of the object at the term (Al-Mughni, 4/188).
The Shafi'is specify that the attributes must be mentioned in the wording of the contract, to distinguish the object from all others: mentioning them after the contract is invalid, even in the session of the contract (Rawdat al-Talibin, 3/237).
The jurists differ on requiring the mention of the place of delivery. Abu Hanifa (later view) and the Shafi'is in the madhhab: the mention is required if the object involves transport and expense, or if it was salamed in a place unfit for delivery; otherwise the contract is void. If transport costs nothing or the object is in a place fit for delivery, this mention is not required, and the place of the contract becomes, with the Shafi'is, the place of delivery by custom; it suffices to say: 'you shall deliver to me in such a town'. With Abu Hanifa and the Shafi'is in one view, he delivers it wherever he meets him, in whatever place he wishes.
The Hanbalis, Abu Yusuf and Muhammad among the Hanafis, and al-Shafi'i in one view: the mention of the place of delivery is not required, for its place is the place of obligation: he must deliver what he has bound in his dhimma; the Prophet did not mention it in the hadith; and delivery is owed at the place of the contract, that being the contract's meaning.
Al-Kasani sets out this disagreement (Bada'i' al-Sana'i', 5/213-214): with Abu Hanifa, indicating the place is required if there is transport and expense; Abu Yusuf and Muhammad do not require it; the same disagreement applies to the place of the wage in hire (ijara), and to selling a described measure or weight serving as price. Some Hanafis distinguish: if the salam is immediate, the place of the contract is the place of delivery by consensus. The gist of the disagreement: does the place of the contract bind for delivery? With Abu Hanifa, no, the contract having occurred absolutely without determination of place: in reality no place is mentioned in it, and legally the parties may designate another; if the contract place were binding, designating another would change the contract's meaning, which is not allowed. With Abu Yusuf and Muhammad, the cause of the obligation to deliver is the contract, which occurred in that place, which therefore binds, as in the sale of the present.
If the object involves no transport or expense, Abu Hanifa has two narrations: one does not designate the contract place either (the narration of the Book of Hire): he delivers wherever he wishes; the other designates the contract place (the view of Abu Yusuf and Muhammad, the narration of the Jami' al-Saghir, and the sales narration from the original). Some early Hanafis interpret it: he delivers at the place of the salam if the two do not dispute; if they dispute, he takes it wherever he meets him. If the owner of the salam stipulates delivery in a town or village, it is valid, and he may not choose a place beyond it; if delivery occurs elsewhere, he may refuse, per the Prophet's words: 'Muslims are bound by their conditions'; and if a transport wage is offered him for it, he may not take it, his dhimma being discharged by the taking; he would have to return the wage and may refuse the object until delivery at the stipulated place (Bada'i' al-Sana'i', 5/213-214; see also Al-Mabsut, 12/127; Al-Bahr al-Ra'iq, 6/176).
The Hanbalis add: he may take it elsewhere if both are satisfied; and if one says: 'take it, with a like transport wage to the place of delivery', it is not allowed. The condition of delivery outside the contract place is valid: it is a sale, and delivery outside its place is stipulated as in the sales of present goods; stipulating it at the contract place is mere confirmation. If the salam is contracted in a desert, on a ship or in a land of war, the mention of the place is required, else the contract is void, delivery there being impossible and without indication: it must be specified by word and time, and the seller's statement is accepted with his oath. The Malikis: it is best to stipulate the place of delivery; failing that, it is the place of the contract; if stipulated, it binds, the buyer may not take it elsewhere and takes the rent of the distance between the two places, which stand for two terms (Al-Qawanin al-Fiqhiyya, 1/178; Rawdat al-Talibin, 3/234-235; Al-Mughni, 4/200, and other sources).
Hanafis and Shafi'is require the salam contract to be final, with no stipulated option (khiyar al-shart) for either party or both: it does not tolerate delay, and the option is a greater gharar, preventing ownership or its firmness. As for the khiyar al-majlis, it stands with those who hold it, by the generality of the Prophet's words: 'The two parties to a sale have an option as long as they have not separated', the salam being a described sale in the dhimma.
Hanafis: if someone salams ten dirhams in a measure of wheat with a three-day option, and the buyer takes the capital and they separate, the contract is void, the legality of the option being contrary to qiyas and founded on a need absent in the salam. If the two parties cancel the option before bodily separation, the capital remaining in the buyer's hand, the contract reverts to permissibility; if the capital perishes, it does not revert. The option of inspection (ru'ya) in the capital and the defect option do not void the salam, for they do not prevent the establishment of ownership.
Al-Kasani said (Bada'i' al-Sana'i', 5/201): the contract must be final, free of any option condition; the option in the sale of the present was established by text departing from qiyas, and the text was given only for the sale of the present; the salam is not in its meaning, the option being there to repel prejudice (ghabn), whereas the salam is founded on prejudice and loss of price, being the sale of the destitute. Moreover, taking the capital is a condition of validity, and taking is valid only in ownership, which the option prevents. If the option-holder cancels it before separation, the capital in the buyer's hand, the contract reverts to permissibility with us, against Zufar; if it perishes or is consumed, it does not revert by consensus, the capital becoming a debt on the buyer, and the salam is not contracted on a debt capital.
Imam al-Shafi'i said (Al-Umm, 3/133; al-Iqna' of al-Mawardi, 98): the option is not allowed in the salaf: if a man says to another: 'I buy from you for a hundred dinars paid now a hundred sa' of dates to be delivered in such a month, with an option for me, for you, or for both of us after our separation', the sale is not allowed, as the three-day option is in the sales of present goods; likewise if he says: 'I buy a hundred sa' of dates for a hundred dinars, with a one-day option: if it pleases me I pay you the dinars, else the sale is rescinded between us', it is not allowed: it is a described sale, allowed only if its owner takes the price before they separate, for the taking here is a taking of ownership; and the option for one of the two is not allowed either: if for the buyer, the seller does not own what was handed to him; if for the seller, he would not own what he sold, being able to enjoy his money then return it.
The Malikis allow either party to grant the other, or a third party, the option to confirm the salam contract or rescind it, under two conditions:
If it is paid over, even voluntarily, the contract is void: it oscillates between loan and sale, between salam and other, with a spoiling condition; and this even if the condition is later dropped (Sharh Mukhtasar Khalil, 5/203; Al-Sharh al-Kabir, 4/316; Minhaj al-Jalil, 5/355). The Hanbalis: no formal view has been recorded of them; Ibn al-Qattan al-Fasi says they agree that a stipulated option, short or long, voids the salam, except Malik, who allows it up to a day or two (Al-Iqna', 4/1821, no 3536). Ibn Abd al-Barr says: the option is not allowed, with the majority of scholars, in what must be delivered in the session, like exchange and salam, for it would contradict the agreed principles (Al-Istidhkar, 6/485).
Hanafis, Malikis, Shafi'is and Hanbalis require that neither the capital nor the salam object combine either of the two attributes of the cause of riba, with details among them. Hanafis: neither attribute may combine in the two exchanges, to the point that salam of a secondary food (hariwi) in its like is not allowed, nor measured in measured (wheat in barley), nor weighed in weighed (iron in brass or saffron), per the Prophet's words in the hadith of Ubada: 'When these kinds differ, sell as you wish, provided it is hand to hand' (reported by Muslim, 1587; Al-Ikhtiyar, 2/43).
Malikis: it is required that the two counter-values, that is, the capital and the object, not both be foods without restriction, nor both currencies (gold against silver, the reverse, gold against gold, silver against silver), for that would lead to deferred riba (nasi'a) without restriction and to surplus riba (fadl) within the same genus. One may not therefore say: 'I salam you an irdabb of wheat for an irdabb of wheat or of beans', nor 'a dinar for an amount of silver or for a dinar', so long as the quantity and kind are not identical, unless it is phrased as a loan (qard) or salaf, in which case it is allowed. Modern coins (fulus) have here the status of the tangible good: it is an exchange, so partial salam of them against partial is not allowed. Two foods or two currencies were forbidden because the salam would lead to surplus and deferred riba in case of increase, or to deferred riba if the capital equals the object.
It is not valid to salam a fruiting palm against food, nor to salam a non-food against one of its genus superior or more abundant, like a garment against a superior garment or against two like garments, lest it lead to a salaf bearing profit: quality there equals quantity. Nor two garments against one like or inferior, lest it lead to a guarantee against compensation, that is, to suspicion of usury. Unless the benefit differs: thus salam of a sure-footed mule-like donkey (farah) against two ordinary donkeys, or the reverse, is allowed, for differing benefits make one genus like two genera. Likewise salam of a racehorse against two non-racing horses, what counts in horses being racing, not walking speed (hamla); unless the slow animal is of great build, lean-bodied, meant for carrying (baradhun): then one may be salamed against several of its opposite. Likewise salam of a heavy-load camel against two camels without that trait (Tahrir al-Mukhtasar, 4/40-41; Sharh Mukhtasar Khalil, 5/206; Al-Sharh al-Kabir, 4/323-324; Minhaj al-Jalil, 6/385-386, and other sources).
Shafi'is: salam in dirhams and dinars is valid, in the sounder view, on condition that the capital be something else. Salam of dirhams against dinars, or the reverse, deferred, is not allowed; if immediate, two views: the sounder, that of the text of Al-Umm in several places, is invalidity; the second is validity with both taken in the session (Rawdat al-Talibin, 3/248).
Hanbalis: salam in pure prices is valid, the capital being other than those prices, for deferral is forbidden between two currencies. Two currencies between which deferral is forbidden cannot be salamed one against the other, for want of simultaneous exchange in the session: one cannot salam wheat against barley, nor bread against cheese. Salam in coins (fulus), even of low value, counted or weighed, is valid even if their capital is prices, for the fulus are a commodity, not a price; this is the soundest view. Al-Bahuti qualifies: in matters of riba they are attached to prices in the correct view, so that the salam is not valid if their capital is a price, for want of simultaneous exchange. But if the fulus are traded by weight and a weighed thing, like wool, cashmere or flax, is salamed on them, the salam is not valid: both combine in the cause of deferred riba, namely weight. Salam of a commodity against a commodity is valid if no deferred riba runs between them: if the buyer brings at the term the very item he paid as capital, it must be accepted if the attribute is the same, for he brings the salam object according to its attribute, the object being in the dhimma and this standing in its place. If he does so as a ruse to benefit from the good set as capital then take it back without compensation, it is not allowed: ruses are forbidden (Kashshaf al-Qina', 3/339-340; Al-Rawd al-Murbi', 1/601; Al-Mughni, 4/199).
The jurists of the four schools differ: must the amount of the capital be known, or does pointing to it suffice? Abu Hanifa, the Malikis in the famous view, the Shafi'is against the azhar and the Hanbalis in the madhhab require knowledge and definition of the amount of the capital, even if indicated by pointing: the rescission of the salam for delay of the object cannot be excluded, hence the need to know the capital to restore it, as with the loan and partnership; and part of the price may become due, voiding the contract partly without knowing what remains. The capital is one of the two counter-values like the object; whatever brings ignorance of the object is taken into account in the contract, as shown by the prohibition of salam in the exact contents of a vessel, the vessel possibly perishing. On this basis, the capital can only be what a salam may be made in, its attributes being defined like the object's.
With Abu Hanifa, this holds for the measured, the weighed and the counted; for garments and animals, it is not required: his argument is that ignorance there leads to uncertainty of what is received: if one salams a handful of dirhams and counterfeits are found among them, the contract is void for them without knowing their share of the capital; this does not arise if the capital is a garment, its amount not being the object of the contract.
The same holds for garments woven of two materials (linen and cotton and the like), since their definition is possible; likewise arrow shafts (nashshab), feathered arrows, slippers (khifaf) and spears. It is not valid in what cannot be defined, like vegetables (buqul), which vary and cannot be estimated by the bundle; nor in hides, too variable and unmeasurable because of their uneven edges; nor in heads and trotters (akari'), mostly bone and jaws, with little meat and not weighed; nor in eggs; nor in vessels whose necks and middles vary (qamaqim and the like), unless they are uniform; nor in gems, pearls, carnelians and the like, which visibly vary in size, roundness, luster and clarity (Al-Mughni, 4/185, 190; Sharh al-Zarkashi, 2/99-102; Al-Incaf, 5/85-88; Manar al-Sabil, 2/70-73, and other sources).
The jurists differ: if one salams one thing to be received in known parts at separate times, is it valid? Malikis, Shafi'is according to the azhar and Hanbalis: it is valid to salam one thing with two different terms. Shafi'is against the azhar: it is not valid. Qadi Abd al-Wahhab said: it is allowed to salam one thing to two terms, and two things to one term, against al-Shafi'i in one of his two views: the hadith says 'to a known term' without distinction; whatever can be in the dhimma to a term can be to two terms, like prices; and this salam concerns what has a defined attribute and can be salamed to a known time when it exists, resembling salam on one thing to one term (Al-Ishraf, 2/518, no 518).
Al-Umrani said (Al-Bayan, 5/431-432): if one salams a thing of one genus to two or more terms, or a thing of two genera to one term, as in saying 'I salam you this dinar for so many pounds of meat, you deliver me a pound each day', or 'for five awdab of wheat and five awdab of millet': two views. The first, weak, is invalidity: what corresponds to the farther term is less than what corresponds to the nearer, and what corresponds to one of the two genera is less than the other: it is unknown, hence invalid. The second: the salam is valid, Malik's view and the sounder, for every sale allowed to one term is allowed to two terms, like the sales of present goods, with caution against manumission by writing (kitaba); likewise every sale allowed on two genera in two contracts is allowed on both in one contract.
Ibn Qudama said (Al-Mughni, 4/202-203): 'If one salams one thing to receive it in known parts at separate times, it is permitted.' Al-Athram said: I said to Abu Abdallah (Ahmad): a man pays dirhams for an edible good and receives part of it each day; he said: that is then in the meaning of salam? I said: yes. He said: there is no harm. Then he said: like the butcher given the dinar against a described pound of meat each day; and Malik said the same. Al-Shafi'i: salaming one genus to two terms is not valid in one of the two views, what corresponds to the farther term being less and unknown. Our argument: every sale allowed at one term is allowed at two terms and more, like the sales of goods; if he receives part and receiving the rest becomes impossible, the contract is rescinded and he recovers his share of the price. The rest does not take precedence over the received part: it is one sale of like parts, the price dividing equally over the parts, as if the terms coincided (Sharh al-Zarkashi, 2/104; Al-Incaf, 5/99).
The jurists of the four schools agree: specifying the object is not valid; it must be in the dhimma. One may not salam the fruit of a particular orchard, nor of a small village. Per the report of Abdallah ibn Salam: a man came to the Prophet and said: the Banu Fulan have salamed to some people of the Jews, and they are starving; I fear they will apostatize. The Prophet said: 'Who has something?' A Jew said: I have such and such property for a thing he named, three hundred dinars at such and such a price against the orchard of the Banu Fulan. The Messenger of Allah said: 'At such and such a price, to such and such a term, and not against the orchard of the Banu Fulan' (weak hadith, reported by Ibn Maja, 2281). In Abu Ya'la's version (7496): 'The Messenger of Allah salamed dinars in named dates to a named term; the Jew said: against the dates of the orchard of the Banu Fulan? The Prophet said: as for the dates of the orchard of the Banu Fulan, no.'
In Ibn Hibban's version (288), the man approaches like a Bedouin and says: 'Messenger of Allah, the Banu Fulan have embraced Islam; I had told them that if they entered Islam provision would come to them in abundance, but drought has struck them; I fear they will leave Islam for hope as they entered it for hope.' The Messenger of Allah looked at a man beside him, Omar most likely, who said: nothing of it remains with me. Zayd ibn Thabit narrates: I drew near and said: 'Muhammad, will you sell me known dates from the orchard of the Banu Fulan to such and such a term?' He said: 'No, Jew; but I sell you known dates to such and such a term, without naming the orchard of the Banu Fulan.' I said: yes. He sold to me; I paid him eighty mithqal of gold against known dates to the stated term; then he handed the money to that man, saying: hasten to relieve them with it.
Abu Bakr Ibn al-Mundhir said: the invalidity of salam in the fruit of a particular orchard amounts to the consensus of the scholars: Malik, al-Thawri, al-Awza'i, al-Shafi'i, Ahmad, Ishaq and the partisans of opinion (Al-Ishraf, 6/105; Al-Iqna', 4/1820, no 3533, and many other sources), for its disappearance and loss are not excluded. It is like salaming the exact content of a specified vessel or a specified scale, or presenting a cloth saying: 'I salam you the like of this one'. But if he salams the fruit of a great region where calamity is remote, like the dates of Medina, the wheat of the Said or of Syria, it is valid with the Hanafis, the Malikis in one view, the Shafi'is in the sounder view and the Hanbalis, its fruit not usually disappearing.
Ibn al-Humam said (Sharh Fath al-Qadir, 7/88-90): it is not valid either in the food of a specific town, like the wheat of the Fahmiyyin or of al-Mahalla in Egypt, nor the fruit of a particular palm or orchard, for a calamity may strike it and the capacity to deliver disappears. The compiler adds that the Messenger of Allah pointed to this by his words: 'Do you see: if the fruit of this orchard perished, by what would one of you make his brother's money lawful?': the buyer thus deserves no price if the orchard yields nothing, hence the gharar of rescission. It is otherwise with the wheat of the Said or Syria: the possibility that nothing grows in the whole region is weak and does not constitute the gharar barring validity. This hadith establishes the invalidity of the sale both in the salam and in the ordinary sale; in the salam by the hadith of Abu Dawud and Ibn Maja of the man who had salamed that palm garden with no yield, to whom the Prophet said: 'Did he take anything from your palms? He said: no. He said: by what do you make his money lawful? Return to him what you took.' And the hadith transmitted from Jabir: 'If you sell your brother fruit and calamity strikes it, it is not lawful for you to take anything from him: by what would you take your brother's money unjustly?' applies to the salam as to the sale. In the two Sahihs, Anas reports that the Prophet said: 'If Allah does not make it yield, by what would one of you make his brother's money lawful?'
If the mention of the region serves only to describe the attribute, without designating the exact produce of its soil, like the khashmarani of Bukhara, the basakhi of Bukhara or the good wheat of Ferghana, there is no harm: one does not mean the precise plant of that place but the whole region, whose total disappearance is not imagined; likewise 'the wheat of Herat', meaning Herat in Khurasan. Salam in the food of Iraq, Syria or the wheat of the Said in Egypt is the same. But salaming the wheat of Bukhara, Samarkand or Isbijab is not allowed, the disappearance being imagined; likewise the wheat of Herat, while Herat cloth, with the salam conditions, is allowed: the disappearance of the wheat of such a place is imagined, the addition designating the spot, whereas that of the cloth describes the genus and quality. If the seller brings a cloth woven outside the province of Herat but of the same Harawi type (same quality and cost), the buyer must accept it: the criterion is custom (urf): if the addition is known as a description of attribute, the salam is valid; otherwise not (Ibn al-Humam, Sharh Fath al-Qadir, 7/88, 90). Al-Nawawi said: salaming the wheat of a specific small village or the fruit of a specific orchard is not valid; as for the fruit of a large region or great village, one examines: if it conveys variety, like the Ma'qil of Basra against that of Baghdad (one kind differing in attributes), it is valid, for there is a purpose; if not, two views, the sounder being validity, general disappearance being excluded (Rawdat al-Talibin, 3/237). Al-Bahuti said: the salam is valid if the object comes from a region where calamity is remote, like the dates of Medina; it is not valid if a small village or an orchard is designated, nor if one salams a ewe of Zayd's flock, a camel from his stallion's offspring, a cloth like this cloth or a slave like this slave, per the hadith of Ibn Maja and others: neither its disappearance nor that of its like can be excluded, resembling designation by an unknown measure (Sharh Muntaha al-Iradat, 3/310-311).
The jurists of the four schools agree: once the agreed term has fallen due, the buyer must deliver the object. If he brings it according to the attributes stipulated and defined in the contract, the seller must accept it: he brought his right where it was due; if he refuses, he is told: take your right or release him. If taking is impossible, the judge takes it from the buyer for the seller and the buyer's dhimma is discharged for that taking, the judge standing in the place of the one prevented by his guardianship; he may not release him, lacking that power.
If the object is brought before the term and the seller refuses to receive it, the jurists differ: is he compelled to take it? Shafi'is and Hanbalis: it is examined. If taking it before the term harms the seller, either because the object changes (fruits and all foods), or because the old is inferior to the fresh (grains and the like), the seller is not bound to accept: he benefits from delay, to eat of it or feed on it at the right time. Likewise the animal, whose loss is not excluded and which requires upkeep until the term, and which he may need at that moment. The same if its keeping entails expense (cotton and the like), or if the time is dangerous for the theft of what he would receive: in all these cases he is not bound to take, the taking harming him and the time of his right not having come, which is like a defect of attribute.
If taking does not harm, the object not changing (iron, lead, copper, whose old equals the fresh, and the like: honey, oil), he must take it: his purpose is fulfilled with the early benefit, like excess of attribute and acceleration of a deferred debt; his refusal would be obstinacy. As the report relates: Anas had bound a mukatab slave of his by writing for a sum to a term; he brought it before the term, Anas refused to take it; he went to Omar ibn al-Khattab, who took it from him and said to the slave: 'Go, you are free' (hasan hadith, reported by al-Bayhaqi in al-Kubra, 10/334).
The Shafi'is specify: if the seller has no purpose in his refusal, and the buyer has another purpose besides discharge of the dhimma, for instance if the object is pledged or guaranteed, the seller is compelled to accept according to the madhhab; otherwise two views, the sounder being that he is compelled. Added, in the sounder of the two views, is his fear that the genus disappear before the due time. If the delivered object has for the buyer no purpose besides discharge: two views, the sounder being that he is compelled; and if their two purposes conflict, the side of the one entitled prevails. Shafi'is and Hanbalis: the other deferred debts follow the rule of the salam object in what we have mentioned: the creditor must receive where there is no harm (Rawdat al-Talibin, 3/251; Al-Wasit, 4/37-38; Al-Mughni, 4/203-204, and other sources).
The Malikis: before the due time, the object is accepted only with the exact attribute of the contract, not finer nor greater in measure: taking the finer falls under 'reduce it for me and I give you more', and taking the inferior attribute or lesser measure under 'give and hasten', both forbidden in the salam. The seller may accept the commodity before the term, whether the term has fallen or not; food is accepted before term only if the term has fallen, otherwise it is not allowed. The seller may refuse the attribute before the term, the term being, in the salam, a right for all that is not currency; otherwise he is compelled before the due time. The loan (qard), by contrast, compels acceptance before its term, whether tangible good, animal or food. The seller does not pay the buyer carriage to the place of taking if the object is received before its place; if the buyer pays that carriage, he is prevented, lands standing for terms; and food adds its sale before taking and deferred riba, for he took it for the food due him in order to avail himself of it in the stipulated town, with preference. The seller, after the term and the place, must accept as the buyer must deliver; and the judge is bound to accept if the creditor is absent and cannot be found in the town of taking, so as to keep it for him until his return (Al-Qawanin al-Fiqhiyya, p. 178; Ibn Juzayy; Tahrir al-Mukhtasar, 4/67-68, and other sources).
If the object is brought at its term otherwise than according to the stipulated attribute, it is examined: if it is of the same genus and type, not less in measure, weight or number, but of an attribute lower than the one stipulated (lower quality), the seller may accept it by agreement of the schools, without being bound: accepting it would mean waiving his right, which cannot be imposed. If he brings of the same genus but finer quality, acceptance is obligatory in the sounder view of the Shafi'is and Hanbalis; the Malikis and the Shafi'is against the sounder view: it is allowed without being obligatory.
The Malikis: if he brings of the same genus but in lesser amount (ten against eleven), and of finer quality, it is not allowed, out of suspicion of selling food against food of its kind not matching it; except under two conditions: first, taking the lesser against its equivalent of the object in quantity; second, the seller releasing the buyer from the amount by which the object exceeds what is taken; then it is allowed, safe from surplus riba between two foods of one kind neither stipulated nor considered. This applies to food and currency whose term has fallen due; for the rest (commodities like garments), taking the lesser against the greater is allowed without the condition of release, for no surplus riba enters it: a cantar of copper against two cantars (Tahrir al-Mukhtasar, 4/67-68; Al-Sharh al-Kabir, 4/354-355; Al-Taj wa-l-Iklil, 3/599-601; Minhaj al-Jalil, 6/401-402).
If he brings another type of the same genus, like stipulated khudri dates and brought Barni, or a stipulated Harawi cloth and a brought Marwi, the Shafi'is hold three views. Al-Nawawi: the soundest is that acceptance is forbidden; the second: obligatory; the third: allowed. Al-Mahalli explains the first: it resembles turning away from a ribawi thing by its genus, with delayed delivery (Rawdat al-Talibin, 3/251, and the sources cited). The Hanbalis: if he brings finer than the described, it is examined: if of its type, he must accept, for he brought what the contract covered, with an added benefit; if of another type, he is not bound to accept, the contract having covered the stipulated attribute, and the type being a missed attribute, like another. Abu Ya'la: he must accept it, for the two are of one genus, joined for zakat, resembling the increase of attribute at equal type. Ibn Qudama: the first view is better, one serving for what the other does not; depriving him of it would deprive him of his purpose, as by depriving him of the quality attribute; this is al-Shafi'i's madhhab. If they agree to take the type instead of the other type, it is allowed: one genus, no sale with preference between them, joined for zakat. Some companions of al-Shafi'i: he may not take it, for the reason preventing obligation; Ibrahim used to say: do not take above your salam, neither in measure nor attribute. Our answer: they agreed on delivery of the object of its genus, so it is allowed, as if they agreed on the bad instead of the good or the good instead of the bad; the bad need not be taken but may be, the seller having waived his right to the type, leaving only the attribute of quality, which its owner permitted (Al-Mughni, 4/203-204; Al-Kafi, 2/118; Al-Incaf, 5/101-102; Sharh Muntaha al-Iradat, 3/309-310).
If he brings something other than its genus, like beef against mutton, or barley against wheat, the Hanafis, Shafi'is and Hanbalis in the madhhab say: it is not allowed, even by mutual consent, for one cannot turn away from it. The Malikis: the buyer may discharge the salam by something other than the genus of the object, whether the term has fallen due or not, under three conditions:
As for the criterion of the attribute required in the object, al-Shafi'i said: 'He is entitled only to the least of what bears the attribute.' Al-Mawardi explains: one who salamed a thing with attributes is entitled only to the least bearer of the name of those attributes: if he salamed good dates, one must bring him dates to which the name 'good' applies, and he cannot demand finer. Malik said: he is entitled to the middle of what those attributes apply to: if the dates are of the middle of the good, he must accept them; if of its first extreme, he is not bound, the middle of things being the most equitable. This position is not correct, for two reasons: first, the status attached to a name attaches to the least of that name, like prices; second, quality is one attribute: considering the middle would add another attribute, and no unstipulated attribute may be added to the salam's attributes (Al-Hawi al-Kabir, 5/412-413; Mukhtasar al-Muzani, p. 93).
Al-Shafi'i also said: 'If it is wheat, he must deliver it pure of straw, chaff (qasal), darnel (madar), wild oat (zuwan) and barley.' Al-Mawardi: one who salamed a described genus is not bound to take it mixed with something else, whether of value or valueless: for wheat, he must not receive straw, chaff, darnel, wild oat, nor a mixture of barley, whether he salamed by measure or weight, for these affect the measure and the scale, little or much. If there is dust: if abundant, he is bound to take only pure; if slight and the salam is by weight, he is not bound either, the dust affecting the scale; if by measure, he takes it with the slight dust, which does not affect the measure, filling the gaps between the wheat grains, unless its removal costs, in which case he is not bound. Likewise dates: he is not bound to take them with the hashaf (soft fresh dates); he must accept the stalks attached to the dates, not those removed from them. Ibn Qudama concludes: he is entitled only to the least of what bears the attribute, the dhimma being discharged once that is delivered; the wheat must be pure of straw, chaff, barley and all that the name of wheat does not cover; much dust occupying measure space prevents, slight dust without effect accompanies; the dates are due only dry, without requiring extreme dryness, the name applying; and he is never bound to accept a defective object: if he takes the object and finds a defect, he may demand replacement or compensation (arsh), as with the sold commodity (Al-Mughni, 4/204; Matalib Uli al-Nuha, 3/213).
Disposal before taking is either a sale, or something else: partnership (sharika), resale at cost (tawliya), resale with profit (murabaha), rescission (iqala). For the sale, the jurists differ: may the seller dispose of the object before receiving it? The majority, Hanafis, Shafi'is and Hanbalis in the madhhab, forbids it, to his creditor as to others: the contract's rescission for the object's disappearance cannot be excluded, nor turning away from it, and the object is like the goods before their taking. It is likewise reported in marfu' form: 'Whoever salams in something must not dispose of it to another' (weak hadith, reported by Abu Dawud, 3468, and Ibn Maja, 2283): this forbids the seller to sell the salam debt, to his debtor or to another, for it is selling what is not received, and selling a debt in the dhimma of another unable to deliver it.
Ibn Qudama said (Al-Mughni, 4/201): as for selling the object before its taking, we know of no disagreement on its prohibition. The Prophet forbade selling food before taking it, and profit on what is not guaranteed; the object is a commodity whose guarantee has not entered, so it cannot be sold, like food before taking.
The Malikis allow the seller to sell the object to anyone other than the buyer, before its taking, without restriction except food; and the buyer's sale in two cases. Ibn Rushd said (Bidayat al-Mujtahid, 2/155-156): Malik forbade buying the object before its taking in two cases: first if it is food, per his madhhab: only food requires taking, per the text of the hadith; second if it is not food and the seller takes as its counter-value a good that may serve as salam capital: the object being a commodity and the price a different commodity, the seller would take from the buyer at the term something of that price's genus, which would entail a salaf with increase if the taken exceeds the capital, or a guarantee with salaf if it equals or is less. Likewise if the salam capital is food: he may not take another, more abundant food, of its genus or not; if identical in genus, measure and attribute (per Abd al-Wahhab), it is allowed, by analogy with commodities; and he may take from the salamed food a food of its attribute, even of lower quality, this being for him like the exchange of dinars and of benevolence (ihsan), like one owed wheat taking barley for its measure. All this, with Malik, is under the condition that the taking not be delayed, else a debt for debt would enter it. If the capital is a tangible good and the object a tangible good of its genus, it is allowed if not more abundant; selling a tangible good against a tangible good deferred is not suspected if it equals or is less; likewise taking dirhams against dinars is not suspected of deferred exchange, nor taking dinars of another kind than the capital's dinars. As for selling the object to one other than the buyer, it is allowed with everything saleable, so long as it is not food, so as not to enter the sale of food before taking.
Qadi Abd al-Wahhab said (Al-Ma'una, 2/37): one who salamed a commodity for a known price, then wishes to resell it to his buyer before taking: at the same or lesser price, it is allowed; at more, it is not. At the same or lesser price, there is no suspicion: he weighs a dirham and receives it after a delay, that dirham having neither increase nor decrease; it is as if he had rescinded or regretted and resold at a loss. At more, he would be suspected of lending dirhams for more at a term, and the qualification of the agreed loan fails: it is a path to riba. Section: he may sell it to one other than his buyer at the same, lesser or greater price, hand to hand; between him and a third party there is no suspicion, and he may not defer the price to him, to avoid debt for debt.
Ibn Taymiyya and Ibn al-Qayyim allow selling the object before its taking to his creditor, at the price of the equivalent or less, never more immediately, whether food or other: this is the view of Ibn Abbas and a narration from Ahmad. Ibn al-Mundhir reports from Ibn Abbas: 'If you salam something to a term, either take what you salamed, or take a counter-value less than it: do not profit twice.' Their proof of the validity of selling to the debtor, or turning away from it, at the equivalent or lesser price, is the absence of a legal impediment: the hadith 'must not dispose of it to another' is weak and grounds no argument; and even if established, its meaning would be: not disposing of it toward another salam, or not selling it for a specific deferred thing, which falls outside the dispute. As for their proof of forbidding turning away at more than its value: the salam debt is guaranteed on the seller and has not passed to the buyer's guarantee; if he sells it to the buyer with increase, the owner of the salam profits from what he did not guarantee, and it is established from the Prophet that he forbade profit on what is not guaranteed. Ibn al-Qayyim said: as for your claim that the prohibition is by consensus, how can it stand when Ibn Abbas, the scholar of the ummah, and Malik ibn Anas, the scholar of Medina, contradict it? There is thus no text of prohibition, no consensus, no qiyas; the text and the qiyas entail permission; and in dispute, one returns to Allah and His Messenger (Hashiyat Ibn al-Qayyim on Sunan Abi Dawud, 9/255-260; Majmu al-Fatawa, 29/505-506; Bada'i' al-Sana'i', 5/214, and other sources).
Disposal by other than sale (partnership, tawliya, murabaha): the majority forbids it, for it is an exchange over the object before its taking, forbidden as if under the wording of sale. Partnership: the owner of the salam says to another: give me half the capital, you will be half owner of the object. Tawliya: give me what I gave the buyer, and the object will be yours. Murabaha: he takes an increase over what he gave. Ibn Qudama: partnership and tawliya in it are not allowed either: they are sales; this is the view of most scholars; Malik's allowance of them is reported, per the tradition that the Prophet forbade selling food before its taking, with easing for partnership and tawliya. Our answer: it is an exchange before the taking, forbidden as under the wording of sale; and they are two kinds of sale, forbidden like the third; the tradition alleged is unknown to us, and the prohibition of selling food before taking covers them. The Hanafis: before the taking, neither sale, nor exchange (istibdal), nor partnership, nor tawliya, nor murabaha is allowed; unlike pledge (rahn) and hawala, the object being a commodity, and disposal over a transferred commodity before taking being forbidden. Ibn Nujaym said (Al-Bahr al-Ra'iq, 6/179): if the owner of the salam sells the object to the buyer for more than the capital, it is not valid and is not a rescission; if he donates it before the taking and the gift is accepted, it is not valid and is a rescission: he must return the capital; likewise if he releases him in whole or in part. In al-Tajnis and al-Waqi'at: a man salamed a kurr of wheat and said to the buyer: I release you from half the salam; the buyer accepted: he must return half the money, the salam being a kind of sale; like the buyer who says to the seller before taking: I have donated half to you, which is rescission at half against half the price; the reduction (hutt) standing for a gift.
Al-Babarti said (Al-'Inaya, 9/431): partnership and tawliya over the object are not allowed, for it is disposal over it; they were specified after entering the general rule because more frequent than murabaha and sale at a loss (wadi'a). It is said: as a caution against those who allow tawliya as an act of benevolence, tawliya-ing to another what one has taken on.
The jurists agree on the validity of iqala in the salam. Ibn Qudama: iqala over the object is permitted, for it is a rescission. Ibn al-Mundhir: all the scholars whose reports we preserve agree that iqala over everything salamed is permitted, for it rescinds the contract and removes it from its root, without being a sale (Al-Mughni, 4/201; Sharh al-Zarkashi, 2/103; Al-Bayan, 5/448). Ibn Rushd said: with Malik, a condition of the iqala is that no increase nor decrease enter it; if increase or decrease enters, it is a sale among the sales, and what enters the sales enters it, that is, it is corrupted by what corrupts deferred sales: by pretending to a sale and salaf, or to a 'give and hasten', or to selling the salam in what may not be salamed. Example of the entry of a sale and salaf: at the term falling due, he rescinds, taking part and releasing part: this is not allowed with Malik, for a sale and salaf are pretended in it; it is allowed with al-Shafi'i and Abu Hanifa, who do not forbid the sales of means (buyu dharai) (Al-Ma'una, 2/37).
The Shafi'is and Hanbalis define the pledge thus: setting a valuable property as a guarantee for a debt, to be collected from it or from its price if the debtor cannot pay (Mughni al-Muhtaj, 3/37; Al-Iqna', 2/297; Kashshaf al-Qina', 3/374; Al-Rawd al-Murbi', 2/10, and other sources).
The pledge is permitted by the Book, the Sunna and the consensus of the community. From the Book: Allah's words: 'If you are on a journey and cannot find a scribe, then a pledge taken into possession' (Surah Al-Baqarah, 283), that is: if you travel without finding a scribe, take a pledge received, guaranteeing your properties.
The Prophet bought food from a Jew for a term and pledged his coat of mail to him.Reported by al-Bukhari (2374) and Muslim (1603), from Aisha
The Messenger of Allah said: 'The riding animal is ridden at its keeper's expense while pledged, and the milch animal's milk is drunk at its keeper's expense while pledged; the expense falls on the one who rides and the one who drinks.'Reported by al-Bukhari (2377), from Abu Hurayra
The pledge is not kept enclosed: its benefit is his (the debtor's), and its loss on him.Reported by Ibn Hibban in his Sahih (5934), by al-Daraqutni in his Sunan (3/32) and by al-Hakim in al-Mustadrak (1/68)
The chain of this last hadith goes, through Ibn Uyayna, to Ziyad ibn Sa'd, from al-Zuhri, from Sa'id ibn al-Musayyib, from Abu Hurayra, in marfu' form. Al-Daraqutni said: Ziyad ibn Sa'd is among the trustworthy memorizers, and this isnad is hasan and connected. Al-Hakim said: authentic hadith by the condition of the two shaykhs, who did not publish it; there is disagreement over it among al-Zuhri's companions, Malik, Ibn Abi Dhi'b, Sulayman ibn Dawud al-Harrani, Muhammad ibn al-Walid al-Zubaydi and Ma'mar having followed this narration. The author concludes that this hadith carries great disagreement among al-Zuhri's companions: it is reported both mursal and connected, as Ibn Abd al-Barr detailed in al-Tamhid (6/425 and following).
From consensus: the jurists of Islam agree on the validity of the pledge in travel as in residence. Ibn al-Mundhir said: they agree that the pledge in travel and residence is permitted; Mujahid alone said it is not permitted in residence (Al-Ijma', 516). He also said: the pledge is permitted in travel by the Book of Allah, and in residence by the Sunna, for the Prophet pledged his coat of mail in Medina while a resident, not a traveler; Allah may permit a thing in His Book under a condition, then permit it without that condition by the tongue of His Prophet: the pledge is thus permitted in travel by the Book and in residence by the Sunna, and this is the view of the majority of scholars (Al-Awsat, 5/681-682; Al-Ishraf, 6/179). Ibn Hubayra said: they agree on the validity of the pledge in residence and travel (Al-Ifsah, 6/415).