1. Consent:
A sale is not valid unless there is mutual consent between the two parties. In the Qur’an, Allah Almighty says (what means): {But only [in lawful] business by mutual consent.} [Qur’an 4:29]
But, how can the consent condition be met between the two contracting parties?
Scholars have three different opinions on how the consent condition is fulfilled in sale. This issue is important, given the new relevant fiqh-related issues in this age. For example, a person can now put coins into a soft drinks machine which, in turn, brings out what he wants. Is there consent here between the seller and the buyer? Also, a person can buy goods via visa card through the Internet. Is there mutual consent here?
There are three scholarly opinions regarding this issue:
a. Mutual consent can only be expressed by speech, through what is known as ‘offer and acceptance’. This is a problem in this age of ours, for some large financial transactions are run in the stock market without verbal offer or acceptance. Instead, they are run through the computer which is connected to an international web, through means that have the force of verbal offer and acceptance, and even with greater force and better documentation.
b. Mutual consent should basically be expressed by speech, and it may also be expressed by action in the things that are frequently contracted. This ruling is issued out of tolerance on the part of some jurists who adopt the first opinion. An example of this is a person who gives money to a baker and he gives him bread while both of them are silent. Also, a person takes a taxi and pays the fare, which is known, while he is silent. Similar to this are the soft drinks machines referred to above. The Islamic jurists call such dealings mu‘atah. They maintain that the sale of such things as frequently contracted in daily life can be made via mu‘atah, without requiring verbal offer and acceptance.
c. Mutual consent can be achieved by anything that indicates it, whether by words or deeds. This opinion was held by Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy upon him, who was exceptionally intelligent and was always ahead of events, as if he was living in a later age.
Another example is transactions made through the stock exchange, which occur in moments according to a system agreed upon between companies and contractors, which denotes consent. All these transactions are valid and there is nothing wrong with them. Moreover, this ruling – i.e. the validity of sale by mu‘atah through anything that denotes consent whether by words or actions – includes all forms that are not yet known to us and that will emerge in the future.
Prior to this, however, there should be an agreement between the companies and between the seller and buyer over a specific system that signifies consent, such as the visa number on the Internet, which represents its holder. If the buyer does not agree to the deal, he will not enter his visa number upon purchase of the commodity. In some other dealings, one may give this number over the phone, indicating his consent, and so on. What is important here is that there should be some means whereby this condition can be fulfilled between the contract’s two parties. It is not necessary that the principle of ‘offer and acceptance’ be expressed verbally.
2. Rationality:
Scholars exclude, from the condition of rationality, the sale concluded by a discerning child regarding matters that are customarily accepted. For example, if a discerning boy says to his father: “I have sold our house to so-and-so,” this is not valid. However, there is nothing wrong if he sells sweets in his father’s grocery shop. This is valid according to custom.
A foolish person does not meet the condition of rationality, so his sale is not valid. A fool is such a person who disposes of his wealth in a way that denotes irrationality, and thus he should be placed under another person’s guardianship. In brief, dealing should be conducted between two rational parties. If a question is posed regarding the dealing with a machine, as to how the condition of rationality can be met in such a deal, the answer is that the deal in such cases is originally with the company that uses the machine, which is a mere method for payment.
3. What is sold should be property:
Property is everything that is regarded, in Islam, as permissible and whose ownership is lawful. Everything that is declared unlawful in Islam is not accorded any respect and cannot be regarded as property and, thus, may not be contracted. Even if a person breaks or spills something unlawful, he is not held liable for this, according to the Sharia. This is because such a thing is worthless, as is the case with musical instruments. The condition that the sold commodity should be lawful property is of great significance in contemporary dealings.
Examples of this include the following:
• Selling human organs, which is an active trade nowadays, for which international companies are operating through selling and buying in poor countries. Each commodity has its price. Is that right? In fact, that is not right, as organs are not property, but a gift from Allah Almighty.
But, there is an important point here. Namely, the Council of Senior Scholars in Saudi Arabia received a question on buying corpses for learning medicine, which is an urgent necessity. This is one of the important new fiqh-related issues that need Muslim scholars who are well acquainted about two things:
First: The general Sharia-rules that form the framework of the Islamic Sharia.
Second: Texts.
This is because understanding texts in the context of the Sharia-rules differs from understanding them separately. The former manner produces a sound understanding, whereas the latter yields an erroneous understanding.
The senior scholars replied that it is not permissible to buy the dead body of a Muslim or use it for learning, given the inviolability of the Muslim. But, they said, it is permissible to use the corpse of a disbeliever for learning, in line with the principle of doing the lesser of two evils. This fatwa is correct, for a disbeliever does not enjoy the sanctity of the Muslim.
It is also not permissible to sell blood, for it is impure, so it is not property. Likewise, it is not permissible to sell dogs, for they are forbidden, and whatever is forbidden cannot be lawful property. However, some hold that it is permissible to sell dogs in cases where using them is permissible.
4. The sold item should be owned by the seller:
There has been a very common error as far as this condition is concerned. Many, or even most, people buy their cars and even their houses, among other things, by means of al-murabahah in some Islamic banks.
What is meant here is the sale of al-murabahah which does not meet the condition of the seller’s ownership of what he sells. The seller here is the Islamic bank. It is not permissible for it to sell what it does not own.
For example, a person comes to you and says that he wants to buy the car of your friend and you say to him “I have sold it to you,” intending thereby to buy the car from your friend and then sell it to that person who would say: “I have bought it.” This contract is invalid, for the owner of the car may refuse to sell it to you. For this reason, the Prophet, sallallaahu ‘alaihi wa sallam (may Allah exalt his mention), is reported to have prohibited such a sale, saying: “Do not sell what you do not possess.” [Ahmad, Abu Dawood, An-Nasa’i, At-Tirmithi and Ibn Majah on the authority of Hakeem ibn Hizam]
When some Islamic banks sell cars or the commodities of other companies, do they sell what they do not possess?
It is known that when a client comes to the Islamic bank to buy a car, for example, the Islamic bank says to him “I sell to you,” meaning that it sells to him what he chooses from among the cars offered in companies in the market. But, from where does the bank bring it? Does it sell what it possesses?
Some jurists tried to get the Islamic bank out of this problem through the following:
First: The client should promise the Islamic bank that he will buy the commodity; and the Islamic bank in turn should promise the client that it will sell it to him. Then, both parties sign the written promises. This signed paper means that the bank is yet to sell the commodity, but it has merely promised to do so after buying it, and the client has only promised to buy it from the bank.
Second: The bank should make this paper binding. When a person comes to the Islamic bank and signs the written promise of purchase, he becomes committed to completing this process. They should declare that this is not a sale contract to avoid falling into the error of selling what the seller does not possess. Rather, it is only a promise, and the Muslim is obliged to fulfil his promise.
Third: After this step, the Islamic bank gives the price of the commodity to the company in cash and then hands the commodity over to the client, by installments at a known profit. Thus, it guarantees that the buyer will not withdraw from the deal and also guarantees its profit from it.
Shaykh Muhammad al-Ashqar wrote a treatise on the invalidity of such a dealing and the impermissibility of obliging the client to buy the commodity on account of his promise, for this puts the bank in a position similar to selling what one does not possess. He also said that a promise is not binding. He settled this issue by the question: Is a promise of purchase binding legally or religiously? In other words, if I promised you to buy a commodity, yet I did not, and then you file a complaint against me to the judge, will the judge oblige me to buy it? On the other hand, if I am not obliged by the court, will I be sinful for breaking my promise and thus have to repent?
He explained that the promise of purchase here is not binding, and that the Islamic bank is required to buy the commodity from the company and own it through a formal contract, bringing the commodity in its possession, and then it sells it to the client by installments and receives a profit from this. The Islamic bank should not oblige the client to buy the commodity for merely promising to conclude the deal, for this would actually be a sale, albeit in the form of a promise.
But some dodged this problem and adopted another method: The Islamic bank does not buy the commodity by a formal contract with the company. Rather, the contract is represented by possessing the commodity; and they only conclude the ‘offer and acceptance’ process over the phone. Then, the bank signs the sale contract with the client and sells it to him by installments. Thereafter, the Islamic bank completes the deal with the company.
This method is also not sharia-compliant. It is nothing but circumvention aimed at changing the form only, thereby distinguishing between the dealing of the usurious facilities companies and that of the Islamic banks. In an authentic hadith narrated on the authority of Zayd ibn Thabit, may Allah be pleased with him, the Prophet, sallallaahu ‘alaihi wa sallam, forbade selling the goods where they are bought until the tradesmen take them to their houses. [Abu Dawood]
This means that a tradesman should have the commodity in his possession, after owning it, before he can resell it. The meaning of possession depends on the thing in question. It does not necessarily mean transferring the commodity to the place of the buyer, for the commodity may be planes, ships, or many cars, which cannot be transferred by the purchaser. What is intended here is that the commodity should become his property and in his possession. This can be done through official documents with a legal force, which prove that the commodity is now in the possession of the bank and registered in its name. In this way, even if the buyer withdraws from the deal, the commodity remains in the full possession of the Islamic bank.
We notify here that one of the forms of selling the commodity before possessing it is what sometimes takes place in Tawarruq sale. For example, a person in need of money goes to buy a quantity of cement by installments and signs the sale contract. Then, he immediately sells the cement to a contractor at a lower price in cash – before possessing it. He may even not know where his commodity is situated. Such sale, in which the dealer sells the commodity before he possesses it, is prohibited. However, if the commodity is separated from the buyer and given to the purchaser, who then sells it to a contractor, then this is the issue of Tawarruq over which the scholars are known to have differing opinions. As some scholars deem it impermissible altogether, some others regard it as generally permissible, if the condition of possession is fulfilled. Still, other scholars regard it as permissible after first possessing the commodity, provided that there is a need for this.
We all remember that the crisis of Al-Manakh market took place because of the violation of this condition, i.e. possessing the commodity before selling it. Shares of illusory companies were sold on credit, with the purchaser desiring to resell them and receive profits until the fixed time for repaying the debt comes. What happened, however, was that this illusory market collapsed and the debts remained unpaid. As a result, the state shouldered a huge crisis that endured for years.
5. The seller should be able to deliver the commodity:
This is a fundamental condition, for if the commodity cannot be delivered, the purpose of the sale will not be fulfilled. For example, it is prohibited to sell fish while it is still in the water or birds while they are in the sky, or to sell a commodity that is located in a country at war, which thus cannot be delivered. This is all invalid.
6. The price should be known:
The price of the commodity should be fixed through seeing or describing.
7. The commodity should be known:
This happens by seeing it or knowing its description. For example, if a person says to another “I have sold you a car”, and the other replied “I have bought it”. This sale is invalid, for neither the car nor its price has been defined. Similarly, if a person says to another “I have sold you a car for five thousand.” This sale is invalid too, since the currency has not been designated. The price should be fixed clearly. But, there is nothing wrong if it is commonly understood which currency is intended. However, on the internet, for example, the currency should be designated.
Seeing the commodity can be done through audio-visual media. This is enough with regard to buying commodities, if the medium is reliable. The buyer remains in a position to accept or reject the commodity if he finds it different in reality.
Article source: http://www.islamweb.net/emainpage/
Damaging another person’s property
Allah, The Most High, has prohibited usurping other people’s property and has imposed liability for whatever is damaged of the property taken without right even if it was by mistake. Whoever damages another person’s property - that is considerable - without its owner’s permission, is financially liable to make up for it.
Imam Al-Muwaffaq, may Allah have mercy upon him, said: “There is no juristic disagreement in this regard, whether or not the damage is intentional, and whether or not the one causing it is legally accountable.”
Similarly, whoever causes the damage of another person’s wealth is financially liable for it. For example, when one opens a gate causing what is locked in to be lost or stolen, or when one unfastens a container causing what is therein to be wasted and damaged, he is liable for them. Likewise, if someone ties a riding animal in a narrow street causing a passer-by to stumble and be harmed or injured, he has to pay him for the damage caused. This is exactly like the one who parks a car in the middle of the street, and as a result, another car or a person is hit, whereby damage is caused, the one who parked the car is liable to make up for the damage. This opinion is based on the Hadeeth reported by Ad-Daraqutni and others, which reads: “If one ties a riding animal in one of the pathways of the Muslims, or in one of their markets, and it treads on someone (or something) by one of its front or back legs, one is liable for it.” [Ad-Daraqutni and Al-Bayhaqi]
The same ruling applies when one leaves clay, a piece of wood or a stone in a pathway or digs a hole in it, causing harm or injury to a passer-by. In the same way, if someone throws watermelon peels or lets water in the street, causing a passer-by to slip and get injured, he is to make up for it. People who do all such actions are financially liable for the resulting damage, as such deeds are regarded as transgression.
Unfortunately, there are many such instances of carelessness everywhere nowadays; too many holes are heedlessly dug on the roads and streets, too many blocks and obstacles are put therein, and too much damage is caused by that heedlessness due to the lack of control and supervision. Some people may even occupy streets as if they were their own, dedicating them for their own use, causing harm to those passing by without caring for the sins they are committing in this way or the punishment that awaits them.
Among the matters that incur financial liability is when one has a mad dog that assaults the passers-by or bites any of them. The owner of the dog is liable to make up for the resulting damages or injuries, for having such a dog is an act of transgression. On the other hand, if someone digs a well in his courtyard for his own benefit, he is financially liable for any damage that might be caused through it; he is obliged to keep it in a condition that prevents harming the passers-by. However, if he leaves it without such precautions, he is deemed a transgressor.
Moreover, if someone owns cattle, he is obliged to keep them away from damaging other people’s crops especially at night; otherwise he is financially liable for whatever they damage. The Prophet, sallallaahu ‘alaihi wa sallam (may Allah exalt his mention), judged in such a case: “The owners of property (i.e. cattle) should keep it during the daytime and they are liable for the damages they (the cattle) cause during the night-time.” [Imam Ahmad, Abu Dawood, and Ibn Majah]
The owner of a domestic animal is not liable for it during the daytime, except if he releases it close to what it usually damages. Imam Al-Baghawi, may Allah have mercy upon him, said: “Scholars hold the opinion that the owners of grazing cattle are not liable for the people’s properties they (the cattle) damage during the daytime. However, their owners are liable for whatever they damage during the night, for it is conventional that the owners of gardens and orchards are to protect them properly during the daytime while the cattle owners are to detain them during the night-time. Thus, whoever breaks this habit has deviated from the convention. This is in case the owner of the cattle is absent, but if he is there, he has to pay for what his cattle have damaged.”
In the Qur’an, Allah mentions a story about Prophets Dawood (David) and Sulayman (Solomon), may Allah exalt their mention, and their judgment concerning a similar case of damage. Allah, The Exalted, Says (what means): {And [mention] David and Solomon, when they judged concerning the field —when the sheep of a people overran it [at night], and We were witness to their judgment. And We gave understanding of the case to Solomon, and to each [of them] We gave judgment and knowledge. And We subjected the mountains to exalt [Us], along with David and [also] the birds. And We were doing [that].} [Qur’an 21: 78 -79]
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy upon him, said: “According to the Qur’an, Sulayman, may Allah exalt his mention, was clearly favoured by understanding the wisdom of liability on equal terms. The sheep were grazing at night and damaged a grape orchard. Dawood, may Allah exalt his mention, judged that the shepherds should pay the exact value of the damage, and then he estimated the sheep and found that their value was equal to the compensation for the damage. Therefore, he gave judgment that all the sheep should be given to the owner of the orchard. However, Sulayman, may Allah exalt his mention, judged that the owners of the sheep were liable for the damaged orchard and that they should pay its exact equivalent in compensation by cultivating the orchard until it returns to its original state. He did not also deprive the owners of the orchard of the crops that were supposed to be yielded from the time of damage until the time of recovery. Thus, Sulayman, may Allah exalt his mention, gave the owners of the orchard the sheep so as to benefit from them as much as the sheep owners used to benefit from the orchard. In other words, they would utilise the shepherds’ sheep in return for the fruits they missed of their orchard until the orchard was re-cultivated by the shepherds (in compensation). So, Sulayman, may Allah exalt his mention, evaluated the two guarantees and found them equal, and that was an example of the knowledge Allah favored him with and the wisdom He praised him for.”
If an animal has been led or ridden by someone, he is liable only for whatever it damages with its front organs, such as the forelegs or the mouth. Yet, he is not liable for what is damaged by the animal’s hind parts such as the hind legs, for the Prophet, sallallaahu ‘alaihi wa sallam, said: “There is no compensation for whatsoever is damaged (or killed or injured) by a beast’s leg.” [Al-Bukhari and Muslim]
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy upon him, said: “The injuries or damages caused by animals like cows, sheep, and the like are not to be compensated (by the owner) if they are off a leash. This occurs, for example, when an animal breaks loose from the person leading it and then causes damage. In this case, there is no financial liability on the owner for the damage provided that the animal is not used to biting and that its owner has not been negligent in detaining it at night and keeping it away from marketplaces and people’s gatherings.”
The same opinion is maintained by some other scholars, who state that there is no compensation (for the damage caused) if the animal escapes and wanders about aimlessly without a leader or a rider, unless it is a wild beast.
In addition, if someone is attacked by a human being or an animal, and killing is the only way to stop them, there will be no compensation on that person in case he killed them. This is because killing here is a means of self-defence which is permissible, so there is no liability for its consequences. Moreover, the killing of an assaulter is intended to prevent its harm, so one will not be regarded as a killer when one kills it in self-defence. Rather, the assaulter itself will be regarded as a self-murderer in this case. Sheikh Taqiyyud-Deen, may Allah have mercy upon him, said: “A person has to stop the assaulter, and if it cannot be stopped except by killing, it is permissible for the attacked person to do so according to the unanimous juristic agreement in this regard.”
Among the objects for which there is no compensation in case of damage are musical and entertainment instruments, crosses, wine containers, and books on misguidance, superstition, dissoluteness and profligacy. This is implied in the Hadith related by Imam Ahmad, may Allah have mercy upon him, on the authority of Ibn ‘Umar, may Allah be pleased with him, who narrated that the Prophet, sallallaahu ‘alaihi wa sallam, ordered him to get a knife and then he, sallallaahu ‘alaihi wa sallam, went to the markets of Madinah, where there were leather containers of intoxicants brought from Ash-Sham (The Levant; the region covering Syria, Lebanon, Jordan, and Palestine). Ibn ‘ Umar, may Allah be pleased with him, added that those leather containers of wine were torn by knives in the presence of the Prophet, sallallaahu ‘alaihi wa sallam, who commanded his Companions, may Allah be pleased with them, to do the same [Ahmad]. This Hadith proves the religious obligation of destroying such immoral things without giving anything in compensation. Still, this should be carried out under the control and supervision of the authorities so as to guarantee public interests and prevent any evil or corruption resulting thereof.
Article source: http://www.islaweb.net/emainpage/
