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1 As the Arabic term 'tasreef' has no ready equivalent in English, I believe that the most
appropriate equivalent should be 'marketing'; for when tasreef applies to goods, it
normally means 'marketing, promoting and merchandising'. For a detailed
discussion of this term, consult the next few pages. For the rest of the paper,
however, I will confine myself to the use of the Arabic term. (Translator's Note)
2 Assistant Professor of Comparative Jurisprudence, Higher Institute of Justice, Imam
Muhammad ibn Saud Islamic University, Riyadh, and the Dean Designate of the
Institute.
The Marketing Contract: Juristic Categorization and Ruling
Preamble
All praise is due to Allah; we praise Him, seek His help and
forgiveness and seek refuge with him against the mischief within
ourselves that of and our bad deeds. Whomever Allah guides none can
misguide and whomever Allah misguides none can guide. I bear
witness that there is no god worthy of worship except Allah, alone and
without any partners; and I bear witness that Muhammad is His servant
and messenger.
Man has a natural propensity for possession and tends to shun
everything that poses a risk in many of his commercial dealings. It is for
this reason, therefore, that he sometimes resorts to some restrictive
conditions in the contracts he concludes with others in order not to be
bound by the contract and its original requirements so that he becomes
assured that the contract's continuity is in his favour.
Perhaps one of the contracts that are commonly concluded these
days on a large scale is the so-called tasreef contract. Even though there is
no mention whatsoever of a contract that carries this name in books of
Islamic jurisprudence, Muslim jurists have actually looked into the
rulings on its forms that are common today, using definitions and terms
that are totally different from the term used in the present study.
Therefore, I would like to make the present humble contribution to
clarify the juristic categorization of this type of contract along with the
rulings on its various forms. I pray to Almighty Allah to assist me in this
task and to guide me to that which is right.
Introduction
The introduction consists of two sections:
I. The linguistic and technical definitions of the Arabic word 'aqd
(contract)
II. The linguistic and technical definitions of the Arabic word tasreef
40 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
3See Al-Qaamoos al-Muheet, p. 383; Lisaan al-'Arab, 3/296; Al-Misbaah al-Muneer, 2/71;
Mu'jaam Maqaayees al-Lughah, 4/86; and Al-Mufradaat Fee Ghareeb al-Qur'aan, p. 341.
4 See at-Tabaree's Jaami' al-Bayaan, 9/451; al-Jassaas's Ahkaam al-Qur'aan, 2/294; and al-
said that that 'uqood (pl. 'aqd, contracts) includes all kinds of obligations and that this
is the very interpretation Qur'an exegetes have stated in their interpretation of the
Qur'anic verse "O you who believe! Fulfil [all] obligations ('uqood)." (Surat al-Maa'idah,
5:1). See also Ash-Shaafi'ee's Ahkaam al-Qur'aan, 2/56-66 and Al-Jassaas's Ahkaam al-
Qur'aan, 2/259.
Al-Adl (38) 41
The Marketing Contract: Juristic Categorization and Ruling
al-'Aqd by Sheikh Abu Zahrah, p. 201; Mukhtasar al-Mu'aamalaat, by Sheikh 'Alee al-
Khafeef, p. 72; and Masaadir al-Haqq Fee al-Fiqh al-Islaamee by As-Sanhooree, 1/74.
42 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
of the word khiyaar (option) while executing the contract and thereby reserves for
himself the right to use it. For in stance, he may say, "I sell this article to you and I
shall have the option to annul the sale and revoke it within such-and-such a period."
(Translator's Note)
Al-Adl (38) 43
The Marketing Contract: Juristic Categorization and Ruling
11 Ju’aalah (also ji'aalah; Arabic ‘payment, reward’): unilateral deal where one party (jaa’il)
declares that he will reward anyone who will provide him with the required service,
such as when the owner of a lost object advertises a reward for any one who will
return to him the lost thing. The person who provides such a service has the right to be
remunerated for his work. (Translator's Note)
12 The istisnaa' contract is a contract in terms of which a person buys on the spot
13 The istijraar contract is a contract between a supplier and a client whereby the supplier
supplies a particular item on an ongoing basis on an agreed mode of payment until
they terminate the contract. It is also applied between a wholesaler and a retailer for
44 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
the supply of a number of agreed items. (Translator's Note) See Radd al-Muhtaar, 5/183
and Dhawaabit ath-Thaman Wa tatbeeqaatuhu Fee 'Aqd al-Bay', p. 214.
14 See Zakiyyud-Deen Sha'baan, Nadhariyyat ash-Shoroot al-Muqtaranah, p. 29; Dr.
Shaadlee, Nadhariyyat ash-Shart, p. 51; and Dr. Zaydaan, Al-Wajeez Fee Usool al-Fiqh, pp.
61-62.
15 See Ahmad as-Saawee, Haashiyat as-Saawee 'Alaa ash-sharh as-Sagheer, 3/232; Al-
'Amraanee, Al-Bayaan, 5/129; Ibn Qudaamah, Al-Kaafee, 3/57. For further details, see
Al-Mawsso'ah al-Fiqhiyah al-Kuwaytiyah (Kuwaiti Encyclopaedia of Jurisprudence), 26/6-9
and Dr. Muhammad al-Yamanee, Ash-Shart al-Jazaa'ee Wa Atharuhu Fee al-'Uqood al-
Mu'aasirah, p. 79.
Al-Adl (38) 45
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46 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
I believe (but Allah knows best) that such objection needs careful
consideration, for all the conditions required by the contract have some
kind of benefit and a legally valid objective for both contracting parties,
whether they have stipulated such conditions in the contract or not. If,
however, such conditions — which are implied and required by the
contract —are expressly stated, then they serve the purpose of
confirming such conditions, in which case such conditions are deemed
metaphorical rather than literal because such an express statement does
not add anything to the original provisions of the contract. 22
An example of a form of sale with a restrictive condition is when two
parties conclude a sale transaction whereby the buyer stipulates that if
he does not manage to merchandise or sell the commodity he has
bought (or part of it), he will return it (or return part of it) to the seller.
Another example is the buyer's saying to the seller, "I will buy the
commodity on condition that I will return it in the event it is not sold
well."
In fact, this is the dominant form of transactions practised today,
especially with regard to consumable goods which people need on a
daily basis, such as dairy products and derivatives, newspapers and
magazines. Indeed, sellers fiercely compete with one another for
consumer attention regarding such products, and perhaps some of the
companies which produce these products and goods provide business
and store owners with a number of equipment and means bearing
catchy brand names to secure their products; these include, among other
things, refrigerators which they give them for free, as a way of
promoting and advertising such products as well as attracting
customers. These companies and trademark owners may also resort to
providing business and store owners and even their customers with
incentives to purchase and promote their products.
22 For further details, see Badaa'i' as-Sanaa'i', 5/171; As-Samarqandee, Tuhfat al-Fuqahaa',
2/611; Ash-Shaadhlee, Nadhariyat ash-Shart Fee al-Fiqh al-Islaamee, p. 173; Al-Madkhal
al-Fiqhee al-'Aamm, 1/506; and Abu Zahrah, Usool al-Fiqh, p. 62.
Al-Adl (38) 47
The Marketing Contract: Juristic Categorization and Ruling
23 See Az-Zayla'ee, Tabyeen al-Haqaa'iq, 4/131; Al-Qaraafee, Al-Furooq, 1/229; Jawaahir al-
Ikleel, 1/248; Az-Zarkashee, Al-Manthoor Fee al-Qawaa'id, 1/373; and Ibn Qaasim,
Haashiyat ar-Rawdh al-Murbi', 4/405.
24 In this type of contract, the form of acceptance is free from any conditions of
Muneer, p. 425.
27 See Ibn Nujaym, Al-Ashbaah Wan-Nadhaa'ir, p. 436; Sharh at-Talweeh 'Alaa at-Tawdheeh,
48 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
purport is that of tanjeez (i.e. completing the contract), its form is that of
ta'leeq (i.e. making it conditional on a future event).29
Making sale transactions contingent on future events in the tasreef
contract takes place in the following two ways:
By using one of the conditional particles30 . As an example of this
is form of transactions, the buyer says to the seller, "If I manage to
merchandise the commodity and sell it, that is fine; otherwise, the sale
contract we have concluded will not be binding." He may also say, "I
will buy the commodity if I manage to merchandise it and sell it;
otherwise, thee sale contract will be null and void."
In these statements, the buyer makes the first sale transaction
between him and the seller contingent on the merchandising and selling
of goods by using a conditional particle, which is 'if' in this instance.
The general meaning in the linguistic context of the statement, as
has been mentioned by some Hanafite jurists31 . To illustrate, the seller
may tell the buyer, "The goods which you do not merchandise and sell
to others will be mine", or he may say, "…will not be deemed sold to
you."
This statement clearly states a condition in the context without the
use of the conditional particle. Here, the seller makes it clear that the sale
contract will not be binding should the buyer fail to merchandise and
sell the commodity.
In fact, there are some differences between the two aforementioned
forms of sale, namely the sale contract which includes the restrictive
condition and the sale contract made contingent upon an event in the
future. These differences essentially stem from the differences between
shart (condition) and ta'leeq (making something conditional upon
1/417.
Al-Adl (38) 49
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50 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
Al-Adl (38) 51
The Marketing Contract: Juristic Categorization and Ruling
52 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
expressions39 . The erudite scholar Ibn al-Qayyim (may Allah have mercy
upon him) writes in this connection, "The principles of Islamic
jurisprudence attest to the fact that what needs considering concerning
contracts are their essence and intents not their forms and expressions."40
Thus, if a person says to another one, "I'll give you this piece of cloth
for SR 100", the transaction is an example of a sale contract and not a gift
contract despite the fact that former has used the word 'give' in his
statement, just as it is used in a gift contract, for words by no means
change the true nature of contracts.
In the present paper, I will mention the ruling regarding each one of
the forms mentioned in the previous part along with Muslim jurists'
views and arguments, the evidence they have furnished in support of
their opinions as well as the preponderant view in this respect, as
follows:
I. The Ruling regarding the Sale Contract with the Condition
that if the Goods do not sell well they will be returned to the
Seller
Indeed, this constitutes the commonest form of transactions under
the tasreef contract. Scholars, however, have expressed three different
opinions in this regard, as follows:
First Opinion:
This contract and its condition are both null and void. This is the
view of the overwhelming majority of Muslim scholars. It is the view of
the Hanafites41 and the well-known and adopted view of the Maalikites.
39See Badaa'i' as-Sanaa'i', 5/3; Al-Wanshareesee, Al-Mi'yaar, 4/95; Al-Manthoor Fee al-
Qawaa'id, 2/371; and Majmoo' Fataawaa Ibn Taymiyyah, 30/1522.
40 See Zaad al-Ma'aad Fee Hadyi Khayr al-'Ibaad, 5/200; Ighaathat al-Lahfaan Min Masaayid
Zayla'ee, Tabyeen al-Haqaa'iq, 4/58; Ibn Nujaym, Al-Bahr ar-Raa'iq, 6/93; Ibn al-
Humaam, Fath al-Qadeer, 6/442; As-Samarqandee, Tuhfat al-Fuqahaa', 2/65; and
Haashiyat Ibn 'Aabideen, 4/121. The Hanafites distinguish between two types of
conditions in the contracts of exchange (mu'aawadhaat, or commutative exchange
involving the voluntary exchange of good, services, and/or both for the purpose of
trade, and includes cash sales, bartering, and currency exchange) , as follows:
1. Invalid conditions which render the contract null and void: These include (1)
conditions which lead to the commission of prohibited acts such as getting involved in
Al-Adl (38) 53
The Marketing Contract: Juristic Categorization and Ruling
3/65-66; Sharh al-Kharshee 'Alaa Mukhtasar Khaleel, 5/81; Al-Hattaab, Tahreer al-Kalaam
54 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
This is also the view held by the Shaafi'ites43 , one of the opinions
expressed by Imaam Ahmad44 (may Allah have mercy on him) as well as
the view held by the Dhaahirees.45
Second Opinion:
The contract is definitely valid but the condition is not so. This is the
view of Al-Hasan al-Basree46 (may Allah have mercy on him),
Fee al-Iltizaam, pp. 327 and 345; Ibn Jizzee, Al-Qawaaneen al-Fiqhiyyah, p. 262; 'Ullaysh,
Fath al-'Alee al-Maalik, 1/344; Ibn Rushd, Al-Muqaddimaat, 5/405; Mawaahib al-Jaleel,
6/242. Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 231; Al-Azharee, Jawaahir al-Ikleel,
2/225; and Nadhariyat ash-Shroot al-Muwtarinah Bil-'Aqd, p. 123.
43 See Al-Umm, 8/185; Al-Ansaaree, Al-Ghurar al-Bahiyyah, 2/426-427; Asnaa al-Mataalib,
accepted only the most literal interpretation of the Qur’an and hadeeth. (Translator's
Note) See Ibn Hazm, Al-Muhallaa, 9/404 as well as Al-Ihkaam Fee Usool al-Ahkaam,
5/815.
Al-Adl (38) 55
The Marketing Contract: Juristic Categorization and Ruling
Muhammad ibn Abee Laylaa 47 , Abu Thawr48 and Ibn al-Mundhir49 . Abu
Thawr also ascribed it to Ash-Shaafi'ee (may Allah have mercy on him),
but this ascription was disproved by some scholars50 . It is also the
opinion adopted by the Hanbalites51 , the view stated by Imaam Ahmad
and the view chosen and preferred by Al-Kharqee, Ibn Qudaamah and
other jurists.
Third Opinion:
Both the contract and the condition are valid. This was the view held
by 'Umar ibn al-Khattaab52 , 'Ali ibn Abee Taalib53 , 'Abdullaah ibn
Mas'ood54 (may Allah be pleased with them all), Shurayh al-Qaadhee55 ,
Ash-Sha'bee56 , Ibn Taymiyyah, as deduced from his general statements
on the issue57 . Ibn Taymiyyah also attributed it to Imaam Ahmad thus,
"[Imaam] Ahmad's statements are to this effect." He also said, "According
to his (i.e. Imaam Ahmad's) most statements, the seller is allowed to
impose a condition on the buyer to do something or not to do it
regarding the tangible asset of the transaction (mabee') which the seller
intends or regarding the mabee' itself, even though the majority of the
later jurists deem manumission the only permissible act in this regard.
Reports to such effect have been attributed to him, but most of his
210. What actually made me say that this is what I have deduced from his general
statements is that I have not found a single text attributed to him in which he clearly
states the ruling regarding the buyer's condition to return the goods if he they do not
sell well. However, his general judgments in this regard—albeit not explicit—as will
be made clear later, strongly confirm the attribution I have made to him.
56 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
statements support the first view." 58 His disciple Ibn al-Qayyim59 (may
Allah have mercy on him) was also of this opinion. Ibn Taymiyyah,
however, mentioned another issue related to this point, namely: As for
those things which are permissible to do without stipulating a condition,
is it necessary to stipulate a condition? In answer to this question, he
writes, "There is some kind of disagreement amongst scholars in this
regard; The [Sharee'ah] fundamentals and textual evidence [from the
Qur'an and the Sunnah], however, support the view that such a practice
is absolutely permissible." 60
It is well-known that if the buyer wants to return the tangible asset
of the transaction (mabee') to the seller without any condition
whatsoever and the seller agrees to that after departing the place where
the sale contract has been concluded, then both the act of returning the
mabee' and that of merchandising and selling it are absolutely valid.
Therefore, the act of returning the asset of the transaction with a
condition is also permissible.
Ibn Taymiyyah also writes in this connection, "The fundamental
principle to be considered regarding contracts and conditions is that
they are valid and permissible, and none of them is regarded
impermissible or invalid except the ones the Sharee'ah rules are clear as
to their being impermissible or invalid, either through textual evidence
[from the Qur'an and the Sunnah] or through analogical reasoning
(qiyaas) for those who adopt analogical reasoning in this respect. In fact,
most of [Imaam] Ahmad's statements are to this effect…" 61
He further explains that most of the conditions, which he deems
valid and generally stated by Imaam Ahmad, some others consider
invalid for the sole reason that they contradict the contract requirements,
thus: "Most of the contracts and conditions [Imaam] Ahmad deems
permissible are those which are similar to them due to some specific
58 See Al-Qawaa'id an-Nooraaniyah, pp. 210, 212 and 213. Here he mentions the texts
attributed to Imaam Ahmad in this respect. See also Ibn Rajab, Taqreer al-Qawaa'id Wa
Tahreer al-Fawaa'id, (edition revised by Mash-hoor Hasan), 3/26; and Al-Insaaf, 4/351,
where he reports one of Imaam Ahmad's statements to this effect.
59 See I'laam al-Muwwaqqi'een, 1/344.
60 See Al-Qawaa'id an-Nooraaniyah, p.16.
61 Ibid., p.210.
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The Marketing Contract: Juristic Categorization and Ruling
62 Al-Qawaa'id an-Nooraaniyah, p. 210. See also Majmoo' al-Fataawaa, 29/341-342 and 346.
63 I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/344.
64 See Nashr al-'Arf Fee Binaa' Ba'dh al-Ahkaam 'Alaa al'Urf, 2/141.
58 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
65 See Al-Hidaayah by Al-Marghinaanee along with its commentary Ma'a Fath al-Qadeer
by Ibn al-Humaam, 6/442-443; and Ibn 'Aabideen, Nashr al-'Arf Fee Binaa' Ba'dh al-
Ahkaam 'Alaa al-'Urf, 2/141.
66 See Nashr al-'Arf Fee Binaa' Ba'dh al-Ahkaam 'Alaa al-'Urf, 2/141. In fact, the condition
stipulated in accordance with the prevailing custom ('urf) is considered valid by the
Hanafites; however, Zafar (may Allah have mercy on him), who was a Hanafite himself,
differed in opinion with them, stating that such a condition is not valid even if it is
prevailing custom amongst people. See Badaa'i' as-Sanaa'i', 5/172 and Al-Mabsoot,
13/14.
67 Ratl (also spelt ritl) is a weight of 12 ounces, and as a measure of capacity, a pint,
Al-Adl (38) 59
The Marketing Contract: Juristic Categorization and Ruling
68 The complete title of the book is Al-Bahr ar-Raa’iq Sharh Kanz ad-Daqaa’iq, and its author
is Zayn ad-deen Ibn Nujaym. (Translator's Note)
69 Fath al-Qadeer was written by Ibn al-Humaam. (Translator's Note)
70 See Nashr al-'Arf Fee Binaa' Ba'dh al-Ahkaam 'Alaa al-'Urf, 2/141.
71 Awaaq (sing. uqiyyah) is equal to 128 grams, and may be less or more according to
established and which confers a right of inheritance on one or both parties connected.
It is of two kinds:
1. Walaa' al-'Ataaqah: Relationship between a master and a manumitted slave, in which
the former inherits any property the latterc may acquire after emancipation.
2. Walaa' al-Muwwalaat: The connection arising out of mutual friendship between a
Muslim and a convert. (Translator's Note)
60 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
Allah's peace and blessings be upon him) was sitting. She said to him, "I
presented the offer to them, but they refused unless the waalaa' would be
for them." When the Prophet heard that and 'Aa'ishah told him about it,
he said to 'Aaishah, "Buy Bareerah and let them stipulate that her waalaa'
will be for them, as the waalaa' is for the manumitter." 'Aa'ishah did so.
After that Allah's Messenger (may Allah's peace and blessings be upon
him) got up amidst the people, glorified and praised Allah and said,
"What is wrong with some people who stipulate things which are not in
Allah's Laws? Any condition which is not in Allah's Book is invalid even
if there were a hundred such conditions. Allah's rules are the most valid
and Allah's conditions are the most solid. The walaa' is for the person
who manumits [the slave]." 73
This hadeeth, proponents of this opinion maintain, clearly indicates
that both the contract and the condition are invalid for the following two
reasons:
a. Commenting on the Prophet's statement "Any condition which is
not in Allah's Laws is invalid", Ibn Hazm (may Allah have mercy on
him) writes, "This refers to any condition which is not mentioned in the
Book of Allah the Almighty or in the Sunnah of His Messenger (may
Allah's peace and blessings be upon him). Indeed, anything which the
Prophet (may Allah's peace and blessings be upon him) specified is in
the Book of Allah the Almighty; he specified seven valid conditions and
apart from these, everything else is invalid, for they are not mentioned
in the Book of Allah." 74
Ibn Hazm (may Allah have mercy on him) also writes, "This report is
very clear on this issue and leaves no room for ambiguity. Given that all
conditions are invalid except for the ones we have mentioned, any
contract, be it a sale contract or otherwise, is undoubtedly invalid if it
includes an invalid condition, for it is concluded on the premise that the
contract will not be valid unless the condition is valid. As long as the
condition is not valid, that which is concluded (i.e. the contract) is
invalid because it is based on the premise that it will not be valid unless
73 Reported by Al-Bukhaaree, hadeeth no. 2023, and Muslim, hadeeth no. 2763
74 See Ibn Hazm, AlMuhallaa, 7/319-320.
Al-Adl (38) 61
The Marketing Contract: Juristic Categorization and Ruling
that which is invalid (i.e. the condition) is valid." 75 He further says, "The
condition is not valid anyway; therefore, that which is concluded (i.e.
the contract) is invalid because it is based on the premise that it will not
be valid unless that which is invalid (i.e. the condition) is valid."76
This evidence and argument was refuted as follows:
It contradicts the practice of the Prophet's companions (may
Allah be pleased with them). Al-Bukhaaree writes in his Saheeh in an
assertive manner, "Ibn 'Umar or 'Umar said, 'Any condition which is
against Allah's Laws is invalid even if one stipulates a hundred such
conditions.'77 'Umar and [his son] Ibn 'Umar interpreted this hadeeth
thus, 'Any condition which is against Allah's Laws' and not 'any
condition which is not in Allah's Book', as the hadeeth states, and there is
a clear difference between the two statements.
Even though there are certain conditions in the sale contract
which are not mentioned in the Book of Allah, scholars are unanimously
agreed that the sale contract is deemed valid as long as the conditions
are valid. These conditions include, among other things, stipulating
deferred payment in instalments and stipulating certain characteristics
in the tangible asset of the transaction (mabee'). In fact, such a sale
transaction is by no means void, as is unanimously agreed by Muslim
scholars even though such conditions are not mentioned in the Qur'an.
Ibn Khuzaymah (may Allah have mercy on him) comments on this
statement thus: "…not in the Book of Allah" means not approved by
Allah's Laws. It does not mean that any condition that is not mentioned
by name in the Book of Allah is invalid, for one of two contracting
parties may stipulate a guarantor in the sale contract, which is
undoubtedly a valid condition…" 78
The Prophet's next statement, namely, "Allah's rules are the most
valid and Allah's conditions are the most solid", would be more
appropriate to cite as evidence if the condition stipulated was claimed to
75 Ibid., 7/320.
76 Ibid., 7/320.
77 See Saheeh al-Bukhaaree, Chapter on Al-Mukaatab (i.e. the slave who is given the writing
62 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
79 See Ibn Taymiyyah, Majmoo' al-Fataawaa, complied by Ibn Qaasim, 29/247; and Al-
Qawaa'id an-Nooraaniyah, p. 230.
80 Surat al-Maa'idah, 5:1,
81 Surat al-An'aam, 6:152.
82 See Al-Qawaa'id an-Nooraaniyah, pp. 214 and 230.
83 Ibid., p. 209.
84 See An-Nawawee, Al-Minhaaj, 10/142, which is an explanation and commentary on
Al-Adl (38) 63
The Marketing Contract: Juristic Categorization and Ruling
Second Evidence
Ibn Hazm (may Allah have mercy on him) writes, "Any condition
which is stipulated in a sale contract or otherwise is without doubt one
of these three conditions: Either (1) to render a certain act not required
by the contract permissible85 , or (2) oblige the other party to do a certain
act86 or (3) prevent one [of the contracting parties]from benefiting from
something87 . This can be done through one's body or wealth, and all of
this is strictly unlawful, as evidenced by the Prophetic report in which
the Prophet (may Allah's peace and blessings be upon him) said, "Your
blood (i.e. lives), your property, your honour and your skins (i.e. bodies)
are sacred to one another." 88 Regarding the prevention of someone from
doing something, Allah the Almighty says, "O Prophet! Why do you
hold forbidden that which Allah has made lawful to you…?" 89 .
Therefore, all conditions are invalid except those which have been made
valid and permissible by textual evidence from the Qur'an or the
Sunnah."90
The following responses were made in refutation of this evidence
and argument:
a. As regards Ibn Hazm's statement, "to render a certain act not
required by the contract permissible", if he means it is not required
according to the terms of the contract, nor is it considered
complementary to it, then it is valid; and those who hold the view that
such a condition is valid do not deny this.
However, if he means that if it is not necessary according to the
terms of the contract, it is not permissible to stipulate such a condition,
85 An example of this is when the seller stipulates that he will benefit from the sold asset
for a certain period of time.
86 An example of this is when the buyer stipulates that the seller must do something fo r
him, such as carrying the wood he has sold or making a shirt from the piece of cloth he
has sold him.
87 An example of this is when the seller stipulates that buyer must not benefit from the
64 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
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The Marketing Contract: Juristic Categorization and Ruling
93 Rahn (pawning, pledging) is a legal term which signifies the detention of something on
account of a claim which may be answered by means of that thing, as in the case of
debt. (Translator's Note)
94 Mahr al-mithl is calculated according to the amount received by other females in the
bride’s family upon their marriage, in addition to consideration of the bride’s beauty,
age and virginity.(Translator's Note)
95 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/1148.
96 Surat al-Maa'idah, 5:1.
97 See Al-Gharar Wa Atharuhu Fee al-'Uqood¸p. 18.
98 Reported by Al-Haakim, Ma'rifat 'Uloom al-Hadeeth, p. 128; At-Tabaraanee, Al-Awsat,
Majma' al-Bahrayn, 3/367; and Ibn Hazm, Al-Muhallaa. They all related it from
'Abdullaah ibn Ayyoob al-Gharbee ah-Dhareer who narrated it from Muhammad ibn
Sulaymaan adh-Dhahlee from 'Abdul-Waarith ibn Sa'eed who said, "When I got to
Makkah, I found Abu Haneefah, Ibn Abee Laylaa and Ibn Shibrimah. I Asked Abu
Haneefah, "What do you say regarding someone who has sold something and
stipulated a condition?" He replied, "Both the sale contract and the condition
stipulated are invalid." When I asked Ibn Abee Laylaa the same question he replied,
"The sale contract is permissible, but the condition is invalid." Then I went to Ibn
66 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
2. 'Amr ibn Shu'ayb also narrated from his father, from his
grandfather, that the Prophet (may Allah's peace and blessings be upon
him) said, "It is not permissible to sell something on condition that the
purchaser lends you something; you cannot sell what is not in your
possession; and no profit is permissible unless possession has been
taken of the goods."99
Those who hold this view maintain that in these two Prophetic
traditions the Prophet (may Allah's peace and blessings be upon him)
prohibits any sale contract which contains a condition; prohibition here
implies that the condition is invalid. Exceptions include only that which
the Sharee'ah permits, such as rahn100 , and that which the unanimous
agreement of Muslim jurists asa well as sound, disciplined analogical
reasoning permit ,such as deferment either in payment or in delivery.
At-Tahhaawee comments on the second hadeeth thus: "If these
conditions are stipulated in sale transactions, they render such
transactions invalid." 101 As for the hadeeth in which the Prophet (may
Shibrimah and asked him the same question, and he replied, "Both the sale contract
and the condition stipulated are permissible." I said to myself, "Subhaanallaah
(Glorified be Allah)! Three scholars from Iraq have expressed three different opinions
regarding one single case!" Then I went to see Abu Haneenfah again and I informed
him [of the different responses]. Abu Haneefah, said, "I do not know what they said,
but 'Amr ibn Shu'ayb narrated to me from his father who narrated from his
grandfather that the Prophet (may Allah's peace and blessings be upon him) forbade a
sale and a condition. Thus the sale is invalid and so is the condition." (p.72) A similar
report was narrated on the authority of Abu Ya'laa who said that when the prophet
(may Allah's peace and blessings be upon him) sent him a certain place he forbade
him to sell something on condition that the purchaser lent him something; that he
could not sell what was not in his possession; and that he should not sell what he did
not possess. See Al-Mataalib al'Aaliyah Bi Zawaa'id al-Masaaneed ath-Thamaaniyah, 2.96.
99 Reported by Abu Daawood in his Sunan, hadeeth no. 3504; At-Tirmidhee, Al-Jaami',
hadeeth no. 1234; An-Nasaa'ee' Al-Mujtabaa, 7/288; Ibn Maajah, As-Sunan, hadeeth no.
2188; Ahmad, Al-Musnad, 2/174, 179 and 205; At-Tahhaawee, Sharh Ma'aanee al-
Aathaar, 4/46-47; Ad-Daaraqutnee, 3/75; and Al-Bayhaqee, As-Sunan al-Kubraa, 5/243.
They all reported it through this chain which is categorized as ' hasan' (good). At-
Tirmidhee said regarding it, "This hadeeth is hasan (good) and Saheeh (authentic)."
100 Rahn (pawning, pledging) is a legal term which signifies the detention of something
on account of a claim which may be answered by means of that thing, as in the case of
debt. (Translator's Note)
101 See At-Tahhaawee, Amushkil al-Aathaar, revised by Shu'ayb al-Arna'oot, 11/251.
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The Marketing Contract: Juristic Categorization and Ruling
Allah's peace and blessings be upon him) said, "It is not permissible to
have two conditions in one transaction", At-Tahaawee (may Allah have
mercy on him) comments thus, "The sale contract in itself is a condition.
Therefore, if he (i.e. the seller) stipulates another condition, this amounts
to having two conditions in one single transaction. In fact, these are the
two conditions which they (i.e. proponents of the view under study)
believe the Prophet (may Allah's peace and blessings be upon him)
describe as prohibited in the hadeeth." 102
After citing these two Prophetic traditions, Sheikh Zakariyyaa al-
Ansaaree also writes, "On the face of it, they (i.e. the Prophetic
traditions) make every condition invalid; however, they have been
interpreted to mean that stipulating an unclear condition is bound to
lead to a dispute after the contract has been concluded 103 and thus
contravene the objective and content of the contract. The condition only
becomes valid when such results do not crop up. In fact, there is textual
evidence as to the validity of certain conditions." 104
The following responses were made regarding this evidence and
argument:
The first hadeeth is classified [by hadeeth experts] as (1) "very weak",
(2) is not known in books of hadeeth and (3) has two defects, namely
1. Its chain of narrators (isnaad) includes 'Abdullah ibn Ayyoob al-
Gharbee adh-Dhareer, and Ad-Daaraqutnee said about it, "It is
matrook 105 ".106
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Dr. Abdullaah ibn Naasir asSulamee
107 Munkar (denounced) is a hadeeth which is reported by a weak narrator, and whose
narration goes against another authentic hadeeth. (Translator's Note)
108 Ghareeb (rare) refers to a hadeeth which is narrated by a single person at one point in
person. For example, Abu (father of) Muhammad and Umm (mother of) Sulaym. Here
Abu Qudaamah uses the words 'Abu (father of) Abdullaah to refer to Imaam Ahmad.
(translator's Note)
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bought a camel from him and he (i.e. Jaabir) stipulated riding it to [his
house] in Madeenah 113 is in favour of stipulating a condition. 114
Furthermore, Muslim jurists have furnished different interpretations
as to the exact meaning of the two conditions which the Prophet (may
Allah's peace and blessings be upon him) consider impermissible, as
follows:
a. They are valid conditions which do not form part of the
requirement of the contract, an example of which is to buy a piece of
cloth and stipulate that the seller has to shorten it or to make a certain
garment from it.
b. The seller says to the buyer, "I will sell you this commodity on
condition that I give you SR 10 cash now and SR 20 later on."
c. The seller says to the buyer, "I will sell you my house on
condition that you sell me such-and-such a commodity." This is the case
of concluding a contract within another contract.
d. They are invalid conditions, an example of which is when the
seller stipulates that the buyer must not sell or donate the commodity he
has purchased.
e. The seller may say to the buyer, "Take this commodity for SR 20
to be paid later on, and I will take it back from you in cash." This is the
case of the so-called 'eenah and 'aks al-'eenah 115 .116
113 The text of the hadeeth is in Al-Bukhaare and reads: Jaabir narrated, "While I was
riding a [slow] and tired camel, the Prophet passed by, beat it and prayed for Allah's
Blessings for it. The camel became so fast as it had never been before. The Prophet
then said, 'Sell it to me for one uqiyyah [of gold].' I said, 'No.' He again said, 'Sell it to
me for one uqiyyah [of gold]." I sold it and stipulated that I should ride it to my house.
When we reached [Madeenah], I took that camel to the Prophet and he gave me its
price. I returned home but he sent for me [and when I went to him] he said, 'I will not
take your camel. Take your camel as a gift for you.'" (Translator's Note)
114 Ibn Qudaamah, Al-Mughnee, 6/322.
115 'Eenah (sale and buy back agreement), as has been defined by the majority of Muslim
scholars, as selling a commodity to another person at a price paid in advance and then
purchasing it from him at far less cash than the price offered to buy it." In fact, such a
transaction is forbidden and is legally invalid. 'Aks al-'eenah (reversal of sell and buy
back agreement), however, means selling a commodity for a price that is paid in
advance and then purchasing it at a far higher price on credit." (Translator's Note)
70 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
116See Al-Khattaabee, Ma'aalim as-Sunan, 3/121; Ibn Qudaamah, Al-Mughnee, 6/322; Ibn
al-Qayyim, Tahdheeb as-Sunan, 5/148; Ibn Qutaybah, Ghareeb al-Hadeeth, 1/18; and Ibn
al-Atheer, An-Nihaayah Fee Ghareeb al-Hadeeth, 2/459.
117 Ibn Qutaybah, Ghareeb al-Hadeeth, 1/18; Ad-Durar as-Saniyah, compiled by 'Abdur-
Rahmaan ibn Qaasim, 6/38; and Ibn al-Qayyim, Tahdheeb as-Sunan, 5/106 and 148.
118 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 28/74 and 29/448.
119 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/119 and Tahdheeb as-Sunan, 5/106, 148
and 149.
120 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/119; and Tahdheeb as-Sunan, 6/149, 148
and 149.
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Fourth Evidence
'Abdur-Rahmaan ibn 'Abdullaah ibn 'Utbah 121 narrated from
Muhammad ibn 'Amr ibn al-Haarith ibn Abee Dhiraar122 that 'Umar ibn
al-Khattaab (may Allah be pleased with him) gave the wife of 'Abdullah
ibn Mas'ood a slave-girl as her portion of the one-fifth of the spoils of
war to be distributed among the poor. She sold her to [her husband]
'Abdullah ibn Mas'ood for one thousand dirhams and stipulated that the
slave-girl would serve her. When the news reached 'Umar ibn al-
Khattab, he addressed 'Abdullah ibn Mas'ood thus, "Abu 'Abdur-
Rahmaan, you purchased your wife's slave-girl and she stipulated that
she would serve her?" "Yes" came the answer. "Don't buy her then,"
'Umar said, "for she (i.e. your wife) stipulated a condition [in the
transaction]." 123
At-Tahaawee (may Allah have mercy on him) writes in this
connection, "'Umar ibn al-Khattaab (may Allah be pleased with him)
considered the sale agreement concluded by 'Abdullaah [ibn Mas'ood]
invalid, and 'Abdullaah concurred with him; however, if he had known
that he was wrong in his judgment, he would have disagreed with him.
In fact, 'Umar did not issue a binding judgment but rather a legal verdict
(fatwa)." 124
121 His full name is Ibn 'Utbah ibn 'Abdullah ibn Mas'ood from Koofah, Iraq, known as
Al-Mas'oodee. Ibn Sa'd writes about him in At-tabaqqat, "He was a reliable hadeeth
memorizer who had memorised numerous Prophetic traditions but his memory got
muddled up before his demise." Ibn Hibbaan also writes about him, "His reports got
muddled up [before he passed away], and thus they were rejected [by hadeeth
experts]…he passed away in 160 AH. " See Tahdheeb at-Tahdheeb, 2/523-524.
122 This is his full name, as Ibn Hibban writes about him in his book Ath-Thiqaat, 7/368.
For further details, see Ash-Shawkaanee, Al-Fawaa;id al-Majmoo'ah Fee al-Ahaadeeth al-
Mawdhoo'ah, revised by Sheikh 'Abdur-Rahmaan al-Ma'lamee, p. 168.
123 Reported by Al-Bayhaqee, As-Sunan al-Kubraa, and said, "It was reported by Al-
Qaasim on the authority of Ibn 'Abdur-Rahmaan, and it is classified as mursal. (In the
terminology of scholars of hadeeth, a hadeeth which is graded as 'mursal' is one which
transmitted by a successor (taabi'ee) from the Prophet (may Allah's peace and blessings
be upon him) directly, thus dropping the companion (sahaabee) from the chain of
transmitters. [Translator's Note])
124 See Sharh Ma'aanee al-Aathaar, 4/47; Sharh Mushkil al-Aathaar, 11/236; Jamaal-ud-Deen
72 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
125 See Tahdheeb at-Tahdheeb, 2/523-524; and Taqreeb at-Tahdheeb, report no. 3944, p. 586.
126 See Ibn Hibbaan, Ath-Thiqaat, 7/368; Ibn Abee Haatim, Al-Jarh Wat-Ta'deel, 8/29; and
Al-Bukhaaree, At-Taareekh al-Kabeer, 1/190.
127 Ibid.
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The Marketing Contract: Juristic Categorization and Ruling
128 Reported by Al-Bayhaqee in As-Sunan al-Kubraa, Book of Sale, 5/236; and At-
Tahhaawee, Sharh Ma'aanee al-Aathaar, 4/47.
129 This is the narration of Sufyaan ath-Thawree in Al-Bayhaqee's book and that of
Mas'ood (may Allah be pleased with him) was a scholar himself, he sought 'Umar's
opinion in this respect. This can be attributed to the following reasons: (1) He might be
aware of the ruling regarding this agreement and sought to follow 'Umar's view in this
respect, according to those who opine that a knowledgeable person may adopt the
opinion of someone with more knowledge; (2) It may be that he wanted him to direct
him to the way he understood the incident and stated his opinion thereof so that
'Abdullaah ibn Mas'ood would know its ruling supported with the evidence to which
Allah would guide him; (3) It may also be that he wanted to ask his opinion despite
his prior knowledge regarding this transaction so that he would know whether or not
he would agree or disagree with him."
131 Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616; and Al-Bayhaqee in
74 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
him) narrated a similar report from Maalik and stated that prohibition in the report
applies only in the case of sexual intercourse, and Al-Baajee supported this view in his
commentary on Maalik's Al-Muwwatta'. See Al-Muntaqaa, 4/211.
136 Reported by At-Tahhaawee in Sharh Ma'aanee al-Aathaar, 4/47, and its chain of
Al-Adl (38) 75
The Marketing Contract: Juristic Categorization and Ruling
Fifth Evidence
They contend that the seller may not be happy with the sale
transaction until the buyer observes the condition he has stipulated; and
it is because of this condition that he agrees to transfer his property to
him and does not consent to do so without such a condition. If the buyer
does not meet this condition, the seller will not give him what he has
bought contentedly. Therefore, such a sale contract is to be revoked due
to the invalidity of the condition which prevents the buyer from freely
disposing of what he has bought, just like any owner freely disposes of
whatever he possesses.137
In refutation of this evidence, it has been argued that one of the two
contracting parties may undoubtedly be not be happy with the sale
contract concluded with the other party. Besides, the party on whom the
condition is imposed as an obligation is not supposed to dispose of the
sold item if he does not meet the condition stipulated by the other party;
otherwise, he would be disposing of part of the other' party's property.
However, the statement that such a sale contract is to be revoked due to
the invalidity of the condition which prevents the buyer from freely
disposing of what he has bought is rather contentious. In reply to this
particular point, it has been contended that if the condition does not
contravene the objective of the contract or that of the Lawgiver by
making the lawful impermissible or the unlawful permissible, then such
a condition is by no means invalid and thus does not render the sale
transaction null and void. In addition, the invalidity of the condition
does not always necessitate that the contract be invalid. In fact, the
contract does not become void by reason of the invalidity of the
stipulated condition unless such a condition contravenes the objective of
the contract…" 138
"For if the contract has an objective which is intended in all its forms
and a condition is stipulated which contravenes the intended purpose,
then two things which are contradictory are combined, in that the
purpose of the contract is confirmed and disaffirmed at the same time,
which leads to nothing. In fact, scholars are unanimously agreed that
76 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
such a condition is invalid, and we hold that it renders the contract null
and void." 139
Sixth Evidence
"Because such a condition contravenes the contract requirement and
does not serve its purpose, it cannot be on the same footing as the
contract; for the contract requires that the buyer should freely dispose of
the sold item, while the condition stipulated in a contract and serves the
interest of the contracting parties prevents one of the parties from
disposing of the tangible asset of the transaction or obliges him to act in
a certain way. In fact, such a condition contravenes the purpose of the
contract, is invalid and makes the contract void." 140
In response to this justification, the following argument by Ibn
Taymiyyah has been cited: "Indeed, any contract has two states: an
absolute state and a restricted state, and there is a difference between the
absolute contract and the absolute intent of the contract. Therefore, if it
is said that such-and-such a condition contravenes the contract
requirement, then such a condition does not affect the contract if it is the
requirement of the absolute contract that is meant, as is the case with
any extra condition. If, however, what is meant is that the condition
contravenes the requirement of the absolute and the restricted contract,
then evidence is required in this case. In fact, such a claim can only be
right if the condition contravenes the contract requirement 141 , such as
stipulating divorce in a marriage contract and the dissolution of
marriage in the same contract. Nonetheless, if what is stipulated
constitutes the objective of the contract, we cannot claim that it
139Ibid.,29/156.
140 See Al-Mabsoot, 13/14; Sharh Al-Kharshee 'Alaa MujhtasarKhaleel, 5/80' Haashiyat as-
Saawee 'Alaa ash-Sharh as-Sagheer, 3/102; Al-'Umraanee, Al-Bayaan Fee Madh-hab al-
Imaam ash-Shaafi'ee, 5/132; and Al-Mughnee, 6/171.
141 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/155. In addition to this, the possibility
that some conditions are not required by the contract does provide strong grounds for
claiming that such conditions are invalid; for this is not a statement made by Allah,
His Messenger, the Prophet's companions or any of the leading jurists, but rather a
statement which was made by a group of people. The right course to adopt here is to
see if any condition which is not required by the contract goes against the teachings of
the Qur'an and the Sunnah, and whether it makes the lawful impermissible or the
unlawful permissible. For further details, see Majmoo' al-Fataawaa, 30/198.
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The Marketing Contract: Juristic Categorization and Ruling
contravenes the objective of the contract. This is the correct view in this
respect as evidenced by the Qur'an, the Sunnah, unanimous agreement
of Muslim jurists, istishaab142 , and the absence of textual evidence which
contradicts this view. "143
Seventh Evidence
They argue that stipulating such a condition which constitutes a
certain benefit to one of the contracting parties or to the object of the
contract (ma'qood 'alayhi) if it is a human being entails an excess
stipulated as an obligatory condition on one of the parties without any
return; and any an excess stipulated as an obligatory condition on one of
the parties without any return is tantamount to ribaa (usury). In fact,
ribaa or a suspicion of it definitely renders the contract void, and thus a
suspicion of ribaa renders the sale contract void just as ribaa does.144
Ibn 'Aabideen (may Allah have mercy on him) explains this point
thus, "Because ribaa is the excess stipulated as an obligatory condition
on one of the parties without any return and the invalid conditions
constitute an excess which is not required by the contract or serve its
purpose, they constitute an excess without any return, which is ribaa."145
In confutation of this argument, it has been confuted that the
stipulated part in the contract is just like stipulating something
additional to the absolute contract or stipulating a deduction therefrom;
and thus it does not constitute an excess without any return, as the
proponents of the first view wrongly claim; for this addition to the
78 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
146 This is a transaction containing elements of fraud on the part of one party, thus
disadvantaging the other party. (Translator's Note)
147 See Saheeh Muslim, Book of Sale, hadeeth no. 2783.
148 See At-Tahhaawee, Sharh al-Ma'aanee, 4/48.
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149 See Al-Mudawwanah, 3/196; At-Taaj Wal-Ikleel Li Mukhtasar Khaleel, 6/500-501; and Al-
Mardaawee, Al-Insaaf, 5/99-100.
150 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/52.
151 Awaaq (sing. uqiyyah) is equal to 128 grams, and may be less or more according to
80 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
masters agree, I will pay them the whole sum provided the waalaa'152
will be for me." Bareerah went to her masters and told them about it, but
they turn down the offer; so she left them while Allah's Messenger (may
Allah's peace and blessings be upon him) was sitting. She said to him, "I
presented the offer to them, but they refused unless the waalaa' would be
for them." When the Prophet heard that and 'Aa'ishah told him about it,
he said to 'Aaishah, "Buy Bareerah and let them stipulate that her waalaa'
will be for them, as the waalaa' is for the manumitter." 'Aa'ishah did so.
After that Allah's Messenger (may Allah's peace and blessings be upon
him) got up amidst the people, glorified and praised Allah and said,
"What is wrong with some people who stipulate things which are not in
Allah's Laws? Any condition which is not in Allah's Book is invalid even
if there were a hundred such conditions. Allah's rules are the most valid
and Allah's conditions are the most solid. The walaa' is for the person
who manumits [the slave]." 153
They argue that the Prophet (may Allah's peace and blessings be
upon him) declared in this hadeeth that the condition was invalid by
saying, "What is wrong with some people who stipulate things which
are not in Allah's Laws?" They go on to say that he permitted the
manumission contract by saying, "Buy Bareerah and let them stipulate
that her walaa' will be for them, as the walaa' is for the manumitter."
Therefore, had the manumission contract been invalid, he would not
have allowed Bareerah's manumission. 154
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155 Al-Umm along with Mukhtasar al-Muzanee, 8/438, Dar al-Ma'rifah edition.
156 See Ibn Hajar, Fath al-Baaree, 5/238; Al-Khattaabee, Ma'aalim as-Sunan along with
Sunan Abu Daawood, 4/246-247; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/337; and
Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/663.
157 See Fath al-Baaree, 5/240; and Sharh ma'aanee al-Aathaar, 4/44.
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Dr. Abdullaah ibn Naasir asSulamee
158 See Fath al-Baaree, 5/240; and Sharh ma'aanee al-Aathaar, 4/44.
159 Surat al-Israa', 17:7.
160Surat ar-Ra'd, 13:25.
161 See Sharh Ma'aanee al-Aathaar, 2/221; Al-Khattaabee, Ma'aanee as-Sunan, 4/447; Ash-
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164 See Ibn Hajar, Fath al-Baaree, 5/239. I have not found it in Ash-Shaafi'ee's Al-Umm,
though.
165 See Ibn Hajar, Fath al-Baaree, 5/239; and Awjaz al-Masaalik Ilaa Muwatta' Maalik,
11/664-665.
166 See Ibn Taymiyyah, Majmoo' al-Fataawaa, Vol. 29/ff337; Sharh Muntahaa al-Iraadaat,
2/163; Fath al-Baaree, 5/239-240; Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/664; Sharh
Ma'aanee al-Aathaar, 4/ff45; Sharh Mushlil al-Aathaar, 11/362; and An-Nawawee, Sharh
Saheeh Muslim, 10/140.
167 Surat at-Tawbah, 9:105.
168 Reported by Al-Bukhaaree, Book of the Mukaatib (i.e. the slave who binds himself to
pay a certain amount equivalent to his freedom by seeking emancipation from his
master), and Fath al-Baaree, 5/245; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/239. Ibn
Taymiyyah supported this view and also attributed it to Imaam Ahmad who said,
"This is the most correct view." See also Awjaz al-Masaalik Ilaa Muwatta' Maalik, 11/665.
84 Al-Adl (38)
Dr. Abdullaah ibn Naasir asSulamee
Support for this also comes from the Prophet's statement, "What is
wrong with some people who stipulate things which are not in Allah's
Laws?", which serves as a reproof for Bareerah's masters, indicating that
he had already clarified Allah's ruling on the matter. For had he not
clarified this matter, he would have begun his speech by clarifying the
ruling of such an act and not by reproaching 'those who stipulate things
which are not in Allah's Laws'. 169
Furthermore, the hadeeth narrated by 'Aa'ishah (may Allah be
pleased with her) denotes that the invalid condition does not render the
contract null and void. This is fine as long as the condition does not
contravene the objective and requirements of the contract, but how can
proponents of this [second] opinion prove that the condition stipulated
in the tasreef contract is invalid? In fact, in the course of discussing the
evidence supplied by proponents of the first opinion, it became clear
that stipulating such a condition does not render the contract void;
therefore, there is no point claiming that such a condition is invalid.
Second Evidence
Proponents of the second opinion argue that it is a contract which
does not normally become void due to invalid conditions, just like the
invalid conditions in the marriage contract, in which case the contract is
valid even though the condition is invalid.170
In response to this evidence, it has been argued that such evidence
supports the view that the contract remains valid despite the invalidity
of the condition, but the disagreement is about whether the condition
stipulated in the tasreef contract is valid or not. It has also been argued
that evidence furnished by proponents of the first opinion fail to prove
that such a condition in the tasreef contract is void.
Evidence furnished by those who maintain that both the
contract and the condition are valid
First Evidence
1. Qur'anic verses commanding the faithful to fulfil their
obligations. These include:
169 Ibid.
170 See Al-Qaadhee Abu Ya'laa, Al-Masaa'il al-Fiqhiyyah Min Kitaab ar-Riwaayatayn Wal-
Wajhayn, revised by Dr. 'Abdul-Kareem Al-Laahim, 11/350.
Al-Adl (38) 85
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1/78, on the authority of Abu Hurayrah (may Allah be pleased with him).
176 Reported by Al-Bukhaaree, Kitaab al-Buyoo', 2/776, on the authority of Abu Hurayrah
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Proponents of the third view argue that these verses and Prophetic
traditions command the believers to fulfil their obligations and honour
their agreements and prohibit them from treachery, betrayal and
deception. They even sternly address those who commit such
prohibitions. Therefore, were such conditions invalid, the Qur'anic
verses and Prophetic traditions would not command the believers to
fulfil their obligations and honour their agreements and censure those
who breach them.
Hence, because the Sharee'ah commands the believers to honour their
contracts and fulfil their obligations, it becomes clear that all contracts
and conditions are essentially valid; for the Sharee'ah deems valid
anything whose objective is to be fulfilled. In fact, because the objective
of the contract is to be honoured, and because the Lawgiver commands
the believers to meet the objective of the contract (i.e. its fulfilment), it
becomes crystal clear that contracts and conditions are generally lawful
and valid.177
Second Evidence
Two reports are cited here, namely:
1. The Prophet (may Allah's peace and blessings be upon him) said,
"The most worthy condition which must be fulfilled is that which makes
sexual intercourse lawful (i.e. through a marriage contract)." 178
2. 'Abdur-Rahmaan ibn Ghunaym (may Allah be pleased with him)
said, "I was once in the company of 'Umar ibn al-Khattaab (may Allah be
pleased with him) and I was sitting so close to him that my knees were
touching his when a man came in and said to him, 'I married such-and
such a woman and she stipulated that I would live with her in her
region. Now I have made up my mind to move to such-and-such a
region, what shall I do?' 'Umar replied, 'You have to meet the condition
she stipulated [in the contract].' Disappointed, the man said, "Tough
luck for men, then. So that means a woman can divorce her husband if
177 See Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, pp.219-220; and Ibn Taymiyyah,
Majmoo' al-Fataawaa, 29/145.
178 Reported by Al-Bukhaaree, Kitaab ash-Shuroot, hadeeth no. 2721; see also Fath al-Baaree,
5/404 for commentary on this report. It was also reported by Muslim, Kitaab an-
Nikaah, 2/1036, hadeeth no. 1418. Both reports are narrated on the authority of 'Uqbah
ibn 'Aamir (may Allah be pleased with him).
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she desires to do so?" 'Umar (may Allah be pleased with him) replied,
"The believers are on (i.e. have to stick to) their conditions when their
interests clash."179
These reports clearly indicate, they argue, that the conditions that do
not contravene textual evidence from the Qur'an or the Sunnah must be
honoured and that the stipulations agreed upon by the two contracting
parties must be observed. In fact, the Prophet's statement 'The most
worthy condition which must be fulfilled…' indicates that conditions in
general are to be honoured, and that the conditions stipulated in a
marriage contract are most worthy of being fulfilled because marriage
conditions are to be strictly observed in order to take sufficient
precautions. In fact, the main reason behind the command to honour
conditions and to include them in contracts (and enter into contracts or
cancel them, for that matter) is to act in accordance with their dictates180
Third Evidence
Imaam Maalik and other jurists reported that 'Abdullaah ibn Mas'ood
purchased a slave-girl from his wife and she stipulated the condition
that if he bought her, she could always buy her back for the price that he
had paid. 'Abdullaah ibn Mas'ood asked 'Umar ibn al-Khattaab about
that and 'Umar replied, "Do not approach her (i.e. don't have intercourse
with her) while anyone has a condition concerning her over you." 181
In this report, proponents of the third view argue, 'Umar ibn al-
Khattaab (may Allah be pleased with him) forbade 'Abdullaah ibn
Mas'ood from having sexual intercourse with the slave-girl but did not
say that the contract and the condition were void, because having
intercourse is one thing, while the validity of the sale contract is
something else. Nor did he consider the condition invalid and declare
179 Reported by al-Bukhaaree; see Fath al-Baaree, 5/404. It was also reported by Ibn Abee
Shaybah in his Musannaf , 9/156 and Sa'eed ibn Mansoor in his Sunan, 11/216 on the
authority of Ismaa'eel ibn Ghunaym; and the report's chain of narrator s (isnaad) is
classified as 'good'.
180 See Ibn Hajar, Fath al-Baaree, 9/272; and Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah,
p. 219.
181 Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616; and Al-Bayhaqee in
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Dr. Abdullaah ibn Naasir asSulamee
the contract valid. Had this been the case, he would not have forbidden
him from having intercourse with her. 182
Fourth Evidence
Contracts and conditions form part of the ordinary acts which are
generally lawful, as evidenced by the Qur'anic verse, "He (i.e. Allah) has
explained to you in detail what is forbidden to you." 183 Therefore, if
contracts and conditions are not forbidden, it follows that they are not
invalid and thus certainly legitimate. 184
Fifth Evidence
There is no ruling in the Sharee'ah which considers types of contracts
and conditions to be forbidden unless otherwise proven to be lawful.
Indeed, the fact that there is no evidence to the effect that they are
forbidden, it follows that they are doubtless not forbidden. In fact, it is
proved through istishaab185 that they are either lawful or generally
forgivable, just like objects of material value which are not forbidden. 186
Nooraaniyah, p. 222.
185 Istishaab literary means courtship or companionship. In Usool al-Fiqh (principles of
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Sixth Evidence
Contracts are generally concluded based on the contracting parties'
mutual consent and satisfaction. Indeed, their terms become binding
upon them following what they have obliged themselves to fulfil, for
Almighty Allah says, "O you who believe! Do not eat up your property
among yourselves in vanities, but let there be amongst you traffic and
trade by mutual good-will; nor kill [or destroy] yourselves, for truly
Allah has been to you Most Merciful." 187 He also said, "And give women
[on marriage] their dower as an obligation; but if they, of their own good
pleasure, remit any part of it to you, take it and enjoy it with right good
cheer." 188 In these verses, Almighty Allah makes the permissibility of
enjoying part of the dower and consuming one another's wealth
conditional on the mutual consent of the parties to the contract. This
means that mutual consent makes the consumption of one another's
wealth and taking part of the dower absolutely permissible…Therefore,
if the contracting parties mutually consent to the terms of a certain trade
contract, or if one of them chooses, of his own good pleasure, to give the
other party something without any return whatsoever, then this is
absolutely permissible, as evidenced by the Qur'anic verses, unless such
contracts include [a condition] which Allah and His Messenger have
made forbidden. Indeed, a condition which is stipulated in the tasreef
contract is one of the conditions which are not made forbidden by Allah
or His Messenger.189
186 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/150, and Al-Qawaa'id an-Nooraaniyah, p.
222. For a detailed discussion of istishaab as a legal proof, see Al-Bukhaaree, Kashf al-
Asraar, 3/378; and Ash-Shawkaanee, Irshaad al-Fuhool, p. 209.
187 Surat an-Nisaa', 4:29.
188 Surat an-Nisaa', 4:4.
189 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/155; and Ibn Taymiyyah, Al-Qawaa'id an-
Nooraaniyah, p. 225.
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Dr. Abdullaah ibn Naasir asSulamee
Seventh Evidence
People in general need such transactions along with the conditions
they stipulate, and the Lawgiver does not prohibit things which people
need in their transactions due a slight form of gharar (risk and
uncertainty) that might result from such transactions. Rather, He
permits anything people need in their dealings; an example of this is the
permissibility of selling fruits before their benefit is evident to be kept on
the trees until picking season [without causing any harm to the
seller]and even before some of the tangible assets of the transaction
(mabee') are in existence yet. He has also permitted the buyer to stipulate
buying only the dates of pollinated palm trees, which means that the
fruits' benefit is not evident yet (i.e. it is not clear yet if they are free from
all the dangers of being spoil or blighted) as long as they are still on the
trees. He has also allowed the sale of 'araayaa 190 by estimating the dates
on them for measured amounts of dried dates, when the need arises,
even though this may be regarded as a form of riba al-fadhl191 ; for this is
done with a view to securing two better benefits at the expense of two
lesser ones and averting two greater harms at the cost of two lesser
ones.192
The Preponderant View
It is clear from the forgoing discussion (Allah knows best) that the
preponderant view is the third one, whose proponents maintain that
both the contract and the condition are valid. I deem it necessary,
though, that such a condition is to be confined to a specific period of
time. This can be realised through one of the following ways:
1. Through the prevailing customs ('urf): After a certain period of
time, people do not seem to show interest in some commodities, such as
magazines and daily newspapers. If someone says to another, for
instance, "If such goods are not sold, I will come back and you will get
your money back", this is absolutely permissible and does not include
any elements of risk and uncertainty (gharar) whatsoever. The same
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thing can be said about fresh foods, such as daily products and their
derivatives.
2. If the period of time is so long that the object of the contract
(ma'qood' alayhi) is affected by change, the period is to be specified; for
the stipulation of cancelling the contract without specifying a certain
period of time is a blatant form of gharar (risk and uncertainty). The
author of Mataalib Ulee an-Nuhaa, as well as some other Hanbalite jurists,
clearly points out to this constraint in the course of discussing the ruling
on Bay' al 'arboon (deposit-secured sale)193 : "The stipulation made in the
deposit-secured sale is valid if the parties to the contract set a specific
period of time (such as one month from now); in fact, the stipulation of
a condition will not be valid without specifying the period of time, as
the buyer or the seller will not know how long they will have to wait.
Therefore, stating an unknown period is not appropriate…as this only
causes sufficient harm." 194
The reason behind deciding on such a preponderant view is based
on the following:
1. Proponents of the third opinion have furnished cogent evidence
and established ample evidence against the arguments furnished by
proponents of the other two opinions. In fact, most of the statements
made by the Prophet's companions in this respect lend support to such
view.
2. Most Muslim jurists are agreed that making a stipulation which
restricts the generality of the contract, such as stipulating the sale of
goods on a deferred payment basis or manumitting the sold slave, is
absolutely permissible. They are also agreed that it is permissible to add,
or decrease, to the property duly possessed according to the terms of the
contract, such as stipulating a certain benefit to one of the contracting
parties or that the other party should not sell or donate the property
purchased or if the goods will be returned to the seller if they do not sell
well.
193 This is a sale agreement in which a security deposit is provided in advance as part
payment towards the price of the commodity. The deposit is forfe ited if the buyer
does not meet his obligation. (Translator's Note)
194 See Ibn an-Najjaar, Mataalib Ulee an-Nuhaa, 3/78.
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Dr. Abdullaah ibn Naasir asSulamee
195 Reported by Al-Bukhaaree, Kitaab al-Hibah, 22/915; and Muslim, Kitaab az-Zakaat,
2/694.
196 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/177.
197 See Ibn Taymiyyah, Al-Qaaa'id an-Nooraaniyah, p. 214.
198 Ibid., p. 155.
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201 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 3/302.
202 See Haashiyat Ibn 'Aabideen 'Alaa adh-Dhurr al-Mugktaar, 5/240-241.
203 See Al-Mabsoot, 13/17; Tabyeen al-Haqaa'iq Sharh Kanz ad-Saqaa'iq, 4/131; Fath al-
Qadeer, 6/447; and Haashiyat Ibn 'Aabideen 'Alaa adh-Dhurr al-Mukhtaar, 5/240; Majma'
al-Anhur Fee Sharh Multaqaa al-Abhur, 2/131; and Al-Fataawaa al-Hindiyyah, 4/397.
204 See Al-Qaraafee, Al-Furooq, 1.228; Ibn Rushd, Al-Muqaddimaat, 5/305 and 415; Al-
dependent on conditions, namely, if one of the contracting parties says to the other, "I
will sell you such-and-such an item only if so-and-so wants it". This, according to
them, is absolutely permissible as long as he fixes the period of time for three days. See
Tabyeen al-Haqaa'iq, 4/131 and Haashiyat Ibn 'Aabideen, 5/242. The Maalikites have
expressed the same opinion except that the person for whom the sale is suspended
lives near the place where the contract is concluded so his opinion is known or that he
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Second Opinion
Making the sale contract conditional on a future event is absolutely
valid as long as doing so serves to realise people's benefits and if the
condition stipulated does not include anything which Allah and His
Messenger (may Allah's peace and blessings be upon him) have
forbidden. This is the view adopted by Imaam Ahmad according to one
of his views.208 Ibn Taymiyyah (may Allah have mercy on him) writes in
this respect, "I have already mentioned that [Imaam] Ahmad maintains
that it is permissible to make the sale agreement contingent on a certain
event in the future; in fact, I have not come across any text by him or by
anyone of his old companions to the contrary." 209 This is the adopted
may be in attendance when the contract is concluded. See Al-Mudawwanah, 3/214. The
Shaafi'ites and the Hanbalites have excluded making the sale agreement contingent on
Allah's Will, if blessings are behind the stipulation of such a condition. See Al-
Manthoor Fee al-Qawaa'id, 1/374; I'aanat at-Taalibeen, 3/7; Al-Mubdi', 4/59; and Al-
Insaaf, 4/356. The Hanbalites, however, have added two more forms: (1) The seller says
to the buyer, "I will sell you such-and-such a commodity on condition you give me the
money within three days; otherwise, the sale agreement will be cancelled." (2) Bay' al
'arboon (deposit-secured sale) in which case, someone buys a certain commodity for a
fixed price and gives the seller a security deposit in advance as part payment towards
the price of the commodity. The deposit is forfeited if the buyer does not meet his
obligation. All scholars from all four schools of jurisprudence have, however,
excluded the sale agreement which is contingent on one of the contracting parties'
will; and example of this is when the seller says to the buyer, "I will sell this to you if
you will", or when the buyer says, "I will buy such-and-such a commodity from you at
such-and-such a price if you will". The reason behind such permissibility, they argue,
is based on the requirement of the contract, namely the contracting parties' satisfaction
and mutual consent; if, however, the sale agreement which is contingent on one of the
contracting parties' will is based on the contract itself, such a condition is not
permissible due to the ignorance and uncertainty (jahaalah) in the contract. For a
detailed discussion, see Al-Mubdi', 4/59-60; Ma'oonat Ulee an-Nuhaa, 3/73; Ibn
Uthaymeen, Ash-Sharh al-Mumti', 8/250; Kash-shaaf al-Qinaa', 3/195; Al-Bahr ar-Raa'iq,
6/195; Al-Mudawwanah, 3/214; Al-Manthoor Fee al-Qawaa'id, 1/374-375; Mughnee al-
Muhtaaj, 2/230-231; Al-Insaaf, 4/365; and Sharh Muntahaa al-Iraadaat, 2/33.
208 See Ibn Muflih, Al-Furoo', 4/62; Al-Insaaf, 4/356; and Al-Mubdi', 4/59.
209 Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee, p.
227.
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Dr. Abdullaah ibn Naasir asSulamee
and preferred view of Ibn Taymiyyah (may Allah have mercy on him)210
and his disciple Ibn al-Qayyim.211
Evidence Furnished by Proponents of both Opinions
Evidence Furnished by Proponents of the First Opinion
Those who hold that it is not permissible to make the sale transaction
contingent on a future event is not permissible provide a number of
proofs including the following:
First Evidence
Making the sale transaction contingent on a future event involves
some kind of uncertainty (gharar) and risk in view of whether it will take
place or not and the time of its occurrence in the future; for the two
parties to the contract do not know if the future event upon which the
sale contract is contingent will actually take place or not. Furthermore, it
may take place at a time when the interest of the seller or buyer changes,
and it is well-known that the Prophet (may Allah's peace and blessings
be upon him) forbade the sale of mulaamasah 212 and the sale of
munaabadhah.213 These types of sale agreements are just like the kind of
sale transaction that is contingent on a future event because in both
types of sale the sale transaction is made contingent on either throwing
something to the other party or touching it, which are conditions in
themselves. This type of sale agreement with such a condition is not
permissible; and if the seller sells something without making the
tangible asset of the contract known, he actually sells it with some
210 See Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee,
p. 227; Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/346-347; Al-Ikhtiyyaraat al-Fiqhiyyah, p.
218; and Al-Furoo', 4/62.
211 See I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 3/387.
212 Mulaamasah means touching something. The sale of mulaamasah has different forms:
The sale becomes valid if the buyer touches, say, clothes without even examining or
looking at them. This is a mode of selling which was practised in the pre -Islamic
period of ignorance (jaahiliyyah). It means that when the buyer touches any item
displayed for sale he has to buy it at the price decided by the seller. (Translator's Note)
213 The sale of munaabadhah is also a mode of selling which was prevalent in jaahiliyyah
before the advent of Islam. It means that when the buyer throws something to the
seller, the former has to buy it at the price decided by the seller. (Translator's Note)
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ignorance and uncertainty on the part of the buyer, hence the type of
risk and uncertainty (gharar) involved in the sale. 214
This evidence has been refuted as follows:
1. The claim that making the sale transaction contingent on a future
event constitutes a form of gharar (risk and uncertainty) is rejected and is
to be carefully reconsidered. It is true that the Prophet (may Allah's
peace and blessings be upon him) forbade anything that would amount
to gharar, such as bay' as-sineen215 (selling the dates of one's date palms
for more than a year, in which case they may or may not grow), habal al-
habalah 216 , and the selling of fruits before their benefit is evident (i.e. they
are free from all the dangers of being spoiled or blighted). The Prophet
(may Allah's peace and blessings be upon him) forbade the sale of fruits
until they are almost ripe. When he was asked, "What does 'until they
become ripe' mean?" He replied, "[It means] until they become red." He
further said, "If Allah spoiled the fruits, what right would one have to
take the money of one's [Muslim] brother?" 217 Indeed, this is real gharar
and risk-taking which involves consuming other people's property
unjustly, for the buyer's objective may or may not be realised through
the sale agreement. As for the sale itself, it does not constitute any form
of gharar; rather it is an agreement and must not be described as a form
of gharar, whether it is a completed contract or a contract that is
contingent on a future event. In any case, none of the two contracting
parties would be considered to have consumed the other party's
property unjustly, because the contract is concluded on the basis of a
specific condition, and if such a condition exists, the sale is finalised.
reported on the authority of 'Abdullah ibn 'Umar that Allah's Messenger (may Allah's
peace and blessings be upon him) forbade the sale called habal al-habalah, which was a
kind of sale practised in the pre-Islamic period of ignorance (jaahiliyyah). One would
pay the price of a she-camel which was not born yet and would be born by the
immediate offspring of an extant she-camel." (Translator's Note)
217 Reported by Al-Bukhaaree, Book of Sale, 2/766; and Muslim, Book of Watering, 3/1190.
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Dr. Abdullaah ibn Naasir asSulamee
218 For a thorough discussion of this point, see Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood,
revised by Muhammad Haamid al-Fiqee, pp. 227-228.
219 For a detailed explanation of the concept of gharar, see Ibn Taymiyyah, Majmoo' al-
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synonymous verbs) this piece of cloth to me, I will give you one dirham
for it". As long as the nature of the piece of cloth is known to both
contracting parties, this practice does not amount to risk-taking or
gharar.220
In response to this refutation, proponents of the first opinion argue
that they do not agree that the suspended conditional sale (bay' mu'allaq)
is free from any forms of gharar because mere suspension, they argue,
constitutes gharar, which leads to consuming people's wealth unjustly
when the contract is concluded at a future date. For the parties of the
contract will not be then aware of the nature or the state of the
commodity or its value. To illustrate, if someone sells a certain
commodity for $ 100 based on a suspended conditional sale, and when
the event upon which the sale contract was made contingent takes place
and coincides with a sharp fall or increase in the commodity's value (for
instance, $ 70 and $ 130, respectively), will this not amount to
'consuming other people's wealth unjustly'? Indeed, there is no
difference whatsoever between this type of transaction and the
forbidden practice of selling dates before their benefit is evident. Just
like selling dates before their benefit is evident oscillates between the
ripening of the dates (as anticipated by the buyer) and the non-ripening
(as unanticipated by the seller), so is the suspended conditional sale
which oscillates between the possibility of the commodity's value being
as anticipated or not anticipated by the buyer when the sale contract
becomes due at a future date. Therefore, 'consuming people's wealth
unjustly' applies to both types of transactions.221
In answer to this argument, opponents of this view contend that if
no time limit, which should be common to people, is specified for the
suspended conditional sale, gharar will certainly result form such a
transaction; furthermore, the contracting parties will suffer as a
consequence and the tangible asset of the contract (mabee') will definitely
change, which will lead to 'consuming people's wealth unjustly'.
However, making the sale contract contingent on a future event does not
contravene a legal ruling, nor does it constitute any form of gharar
222 This is a type of business transaction which consists in selling the fruit on the trees for
a period of one, two or three years even before it has made its appearance .
(Translator's Note)
223 This is type of business transaction prevalent in pre-Islamic Arabia where the unborn
child of a camel was sold while it was still in the womb. (Translator's Note)
224 See Mataalib Ulee an-Nuhaa, 3/78.
225 See Haashiyat Ibn 'Aabideen, 5/256-257; Al-Mubdi', 4/59; Sharh Muntahaa al-Iraadaat,
(may Allah's peace and blessings be upon him) had bought a camel from
him and he (i.e. Jaabir) stipulated riding it to [his house] in Madeenah. 226
So can the Lawgiver possibly forbid one of the contracting parties from
realising a certain interest while such interest by no means causes any
harm whatsoever to the other party at all? Indeed, Jaabir (may Allah be
pleased with him) was happy with the deal and the Prophet (may
Allah's peace and blessings be upon him) contentedly consented to
having the delivery of the camel he had purchased for jaabir be delayed
until they reached Madeenah. Even if there were no textual evidence
from the Sunnah to this effect, mere analogical reasoning would suffice
to prove the permissibility of the suspended conditional sale. 227
b. Ibn al-Qayyim writes, "Leading Muslim jurists are unanimously
agreed that it is permissible to sell the married slave-girl …and to delay
delivery if this is the common practice and established customs ('urf)
amongst people. Because they claim the established customs exclude the
case where someone sells a massive store with numerous commodities
which cannot be all delivered in one or even a few days, and it is not
appropriate to collect all mounts of the land to transport these
commodities at the same time. This claim of theirs actually has
established massive evidence against them, for cases that are excluded
by stipulated conditions are much more deserving than those excluded
by established customs." 228
c. Ibn al-Qayyim also writes, "By your claim that the contract
requires that delivery [of the sold article] ought to be made as soon as
the contract is concluded, do you mean by this the requirement of 'aqd
mutlaq229 or mutlaq al-'aqd 230 ? If you mean the former, that is absolutely
226 Reported by Al-Bukhaaree, Book of Sale, 2/739; and Muslim, Book of Watering, 3/1221.
227 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/10; and Ibn
Taymiyyah, Al-Qiyyaas, p. 28.
228 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/11.
229 Al-'aqd al-mutlaq is the kind of contract in which no conditions are stipulated. Another
kind is a conditional contract (al-'aqd al muqayyad), which may contain either positive
or negative conditions. (Translator's Note)
230 A contract in general, irrespective of inclusion of any positive or negative conditions,
is mutlaq al-'aqd, a term which includes both al-'aqd a!-mutlaq and al-'aqd al-muqayyad.
Accordingly, al-'aqd al mutlaq and al-'aqd al-muqayyad differ from each other, yet are
permissible. If, however, you mean the latter, that is not permissible. For
mutlaq al-'aqd is divided into 'aqd mutlaq (one in which no conditions are
stipulated) and 'aqd muqayyad (one in which conditions are stipulated),
and the requirement of the 'aqd al-muqayyad (one in which conditions are
stipulated) is that the conditions stipulated in it ought to be fulfilled.
Similarly, the requirement of the 'aqd muqayyad ought to be honoured
depending on the type of conditions stipulated in it, such as the
stipulating of delaying payment, kiyaar ash-shart (Optional condition)231 ,
a guarantee (rahn) or a guarantor (dhameen). Thus, the requirement of the
'aqd mutlaq is totally different from that of the 'aqd muqayyad. In fact,
delivery regarding assets and benefits is similar to that regarding debts.
The Prophet (may Allah's peace and blessings be upon him) permitted
the sale of fruits when they become fit for eating. He did not state that
the requirement of the sale transaction is to deliver the sold fruits
instantly; rather, he made the permissibility of delivery apply for as long
as the fruits are ripe and fit for eating. 232
Third Evidence
Stipulating suspension in the contracts of exchange results in failure
of realising complete satisfaction with the concluded contract, as
complete satisfaction comes only as a result of absolute certainty, and
there is no absolute certainty in the case of the suspended conditional
sale; for the future event upon which the sale transaction is made
contingent may or may not take place at all. This being the case, there is
no complete satisfaction as there is no absolute certainty regarding the
occurrence or otherwise of the future event upon which the sale is made
conditional. 233
two kinds that fall under mutlaq al-'aqd (like 'man' and 'woman' with reference to
'human beings. (Translator's Note)
231At the time of sale the buyer or seller can put a condition that he has an option to
rescind the sale within the specific 4 days. This option is called khiyaar as-shart.
(Translator's Note)
232Ibn al-Qayyim, I'laam al-Muwwaqqi'een 'An Rabb al-'Aalameen, 1/11. See also Ibn
237 This is called Khiyaar ash-shart, which is a right that is stipulated by one or both of the
parties to a contract to cancel the contract for any reason for a fixed period of time.
(Translator's Note)
238 See Al-Qurtubee, Al-Jaami' Li Ahkaam al-Qur'aan, 13/272.
239 See Al-Ba'lee, Al-Ikhtiyyaraat, p. 125.
241 Reported by Al-Bukhaaree, Book of Cultivation and Agriculture, 2.820; also reported by
At-Tahhaawee in Sharh Ma'aanee al-Aathaar, Book odf Cultivation and Agriculture, 4/114;
and Al-Bayhaqee in As-Sunan al-Kubraa, Book of Agriculture, 6/135. The isnaad (chain of
transmitters) of the hadeeth is classified as 'authentic' (saheeh) by hadeeth experts.
242 Reported by Al-Bukhaare, Book of Disputes, 2/853; Al-Bayhaqee, As-Sunan al-Kubraa,
an-Nooraaniyah, p. 155.
246 See Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee,
p. 227.
the parties to a contract to cancel the contract for any reason for a fixed period of time.
(Translator's Note)
250 See Al-Mansoot, 13/38; Tabyeen al-Haqaa'iq, 4/14; Al-Baajee, Al-Muntaqaa, 5/55;
253In the language of Islamic law, ghasb (usurpation) signifies the taking of property of
another which is valuable and sacred without the consent of the proprietor.
(Translator's Note)
254 See Ibn Hazm, Al-Muhallaa, 7/260.
255 The Arabic for this expression is Laa Khilaabah, and is mentioned in a hadeeth reported
by Al-Bukhaaree on the authority of 'Abdullaah ibn 'Umar who said, "A man came to
the Prophet (may Allah's peace and blessings be upon him) and told him that he was
always deceived in business transactions. The Prophet (may Allah's peace and
blessings be upon him) told him to say at the time of entering into a transaction, laa
khilaabah 'No cheating, or there should be no attempt to deceive' (i.e. he has the right to
return it if found undesirable)."
Book of Sale, 7/254. In fact, the wording in the hadeeth is his. The version reported by
Abu Daawood was narrated on the authority of Ibn 'Umar, but the chain of
transmitters (isnaad) includes 'Jumay' ibn 'Umayr who is categorized by hadeeth experts
as 'weak'; the chain of transmitters in the hadeeth reported by An-Nasaa'ee is classified
as 'good'. See Tuhfat al-Muhtaaj, 3/231; and At-Talkhees al-Habeer, 3/23.
it. This indicates that the contract remains a sale contract along with the
optional condition. Ash-Shaafi'ee writes, "The optional condition would
have been deemed invalid because we deem a sale contract with an
optional condition of less than three days invalid. However, given that
Allah's Messenger (may Allah's peace and blessings be upon him)
stipulated three days after the purchase of a sheep or camel whose
udder has been tied up, and with reference to the narration to the effect
that he stipulated three days for Hibbaan ibn Munqid for whatever
[cattle] he had bought, we act on the dictates of the Prophet's decision
regarding the period of time specified for the optional condition, and we
do not exceed it…" 266
This is the view of Ash-Shaafi'ee (may Allah have mercy upon him)
despite the fact he considers the optional conditions to be essentially
invalid.
However, Ibn Hazm's contends that any condition which is not
mentioned in the Book of Allah or in the Sunnah of His Messenger is
invalid, as evidenced by the Prophet's statement, "Any condition which
is not in Allah's Book is invalid…" 267 Therefore, he argues, the optional
condition is not mentioned as a valid condition in the Book of Allah the
Almighty…Thus this condition is definitely invalid. This being the case,
any contract whose validity is to be determined by the validity of the
condition stipulated in it is certainly invalid if such a condition is
invalid; hence the invalidity of the sale contract concluded along with an
optional condition. 268
An in-depth discussion and refutation of Ibn Hazm's view on this
matter has already been made, and there is no need to repeat it here.
B. The Ruling as to Stipulating an Optional Condition to
Return the Old Item without Specifying a Period of Time
A question arises here: If a person who wants to merchandise a
certain commodity says to its proprietor, "I will buy this article on
condition that I have the option to return it without specifying a certain
269 See Badaa'i' as-Sanaa'i', 5/174 and 178; and Al-Fataawaa al-Hindiyyah, 3/38-39.
270 See Rawdhat at-Taalibeen, 3/444-445; Al-Majmoo', 9/19; and Asnaa al-Mataalib, 2/50-51.
271 See Al-Mughnee, 6/43; Al-Insaaf, 4/373; and Ash-Sharh al-Kabeer, 11/287.
272 See Badaa'i' as-Sanaa'i', 5/303 and 305; and Tabywwn al-Haqaa'iq, 3/113.
(imperfect).273 The Shaafi'ites and the Hanbalites argue that the contract in
this case ought to be validated anew.
Second Opinion
The contract is valid, but an infinite or unspecified optional
condition entitles the judge to decide on a certain period of time,
depending on the difference between the tangible assets of the contract.
Examples include one or two days for deciding on a piece of cloth, about
a week for deciding on a slave-girl and about a month for deciding on a
house.274 The view adopted by Ibn Taymiyyah (may Allah have mercy
upon him) is that if the parties to the contract stipulate an infinite period
of time, the contract is valid but the optional condition to rescind the
sale ought to be within three days. The seller, he argues, has the right to
dissolve the sale contract if he returns the money; otherwise, he has no
right to do so.275
Third Opinion
The contract is valid, but the optional condition is invalid. This is one
of the views of the Hanbalites which was adopted by the author of Al-
Iqnaa'.276 It is also the view of Ibn Abee laylaa. 277
Fourth Opinion
Both the contract and the unspecified optional condition are valid,
and both contracting parties can infinitely maintain such optional
condition or interrupt it. This is one of the views of the Hanbalites278 , the
view adopted by Ibn Shibrimah and the view which Ibn Rushd
attributes to Sufyaan ath-Thawree.
Evidence Furnished by Proponents of these Opinions
Evidence Supplied by Proponents of the first Opinion
First Evidence
The optional condition has been proved to contradict the contract
requirement without even resorting to analogical reasoning; in fact, the
optional condition prevents the conclusion of the contract as to its
273 See Al-Mabsoot, 13/42; and Badaa'i' as-Sanaa'i', 5/174 and 178.
274 See Ibn Rushd, Al-Muqaddimaat, 5/420; and Bidaayat al-Mujtahid, 3/401.
275 'Alaa'-ud-Deen al-Ba'lee, Al-Ikhtiyyaraat, p. 125.
276 See Kash-shaaf al-Qinaa' Fee Sharh al-Iqnaa', 3/202-203; and Ash-Sarh al-Kabeer, 11/288.
277 See Al-Mughnee, 6/43; and Ash-Sharh al-Kabeer, 11/287.
278 See Al-Mughnee, 6/43; Ash-Sharh al-Kabeer, 11/287; and Sharh az-Zarkashee, 3/404.
ruling, which naturally renders the contract null and void. However,
because it is permissible through textual evidence, we should keep it as
it is, namely for three days without contradicting the period specified by
textual evidence. 279
In response to this evidence, it has been argued that this proof is
based on the erroneous view that the contract stipulated in the
contract—despite the benefits it may bring about for the contracting
parties—contravenes the objective and the requirement of the contract,
and that the optional condition is no exception. Therefore, it is obvious
that this is wrong, for the condition stipulated in the contract does not
invalidate the contract, as we have demonstrated earlier on.
Second Evidence
The stipulation of a conditional option in the contract constitutes a
form of gharar (risk and uncertainty), and the Sunnah only allows it
because people need it; for the buyer may not be certain as to the
commodity he has purchased, so he chooses to test it to see if it is useful
or not, and whether it is really worth the amount he has paid for it,
amongst other things. That is why he is granted the optional condition
for his own benefit. However, stipulating an optional condition for an
infinite period of time constitutes an extreme form of ignorance and
uncertainty (jahaalah), for the Prophet (may Allah's peace and blessings
be upon him forbade gharar280 .281
Third Evidence
The stipulation of an infinite optional condition is bound to prevent
the other party from infinitely disposing of the tangible asset of the
contract, which obviously contradicts the objective and requirement of
the contract. As an example, the seller says to the buyer, "I will sell you
such-and-such an article on condition that you do not dispose of it." 282
In response to this evidence, it has been argued that it is the buyer
who has the right to stipulate the time of the optional condition, and
279 See Al-Kaasaanee, Badaa'i' as-Sanaa'i', 5/174; Al_majmoo', 9/191; and Al-Mabsoot,
13/40-41.
280 Saheeh Muslim, Book of Sale, hadeeth no. 2783.
281See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/418; Asnaa al-Mataalib,
286 See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/418; and Bidaayat al-
Mujtahid, 3/402.
287 See Al-Mughnee, 6/43.
288 See Abu Nujaym al-hanafee, Al-Ashbaah Wan-Nadhaa'ir, p. 94; and Dr. Ya'qoob al-baa
290 Reported by Al-Bayhaqee, As-Sunan al-Kubraa, Book of sale, 5/273; and Ad-
Daaraqutnee, As-Sunan, 3/55. Imaam Ahmad also reported a similar report in Al-
Musnad, 10/283, and so did Al-Humaydeein Al-Musnad, hadeeths no. 6622. They all
reported it on the authority of Muhammad ibn Ishaaq who reported it from Naafi'
from 'Abdullaah ibn 'Umar. Muhammad ibn Ishaaq is known for narrating 'good'
reports whenver he says, "I heard it fromso-and-so' as we have in the present hadeeth.
The chain of transmitters (isnaad) of this report is also classified by hadeeths experts as
'good'. See At-Talkhees al-Habeer, 3/12.
291 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 9/224.
hundred such conditions. Allah's rules are the most valid and Allah's
conditions are the most solid. The walaa' is for the person who manumits
[the slave]." 294 See also the arguments employed regarding this haddeth.
2. They also argue that the contract is concluded along with all its
fundamental elements, and the optional condition is only additional;
therefore, if the condition becomes invalid for some reason and is
dropped, what is invalid is dropped but the contract along with its
fundamental elements is maintained, hence its validity even without
making any stipulation whatsoever. 295
Opponents of this view assert that this opinion needs to be
reconsidered; for the buyer has only consented to pay the money with
the option of recovering the payment he has made, and the seller has
only consented to give the tangible asset of the contract because of the
buyer's optional condition to rescind the sale. Therefore, if we consider
the sale contract valid, we deprive each of the two contracting parties of
they own possessions without their consent and we impose on them
something they are not happy with. Besides, because the condition takes
part of the price, if we drop the condition, the part of the price taken has
to be recovered; in this way, the price is unidentified, and thus any
element of lack of knowledge regarding the price renders the contract
void.296
This argument was refuted thus: If one of the two contracting parties
shows dissatisfaction as a result of the invalid optional condition, he can
redress this by granting him the option to rescind the contract. That is
why scholars emphasize that the contracting party whose benefit is not
realised as a result of the invalidity of the condition can redress this by
rescinding the contract. 297
Evidence Supplied by Proponents of the Fourth Opinion
Those who maintain that both the contract and the unspecified
optional condition are valid advance the following evidence in support
of their opinion:
294 Reported by Al-Bukhaaree, hadeeth no. 2023, and Muslim, hadeeth no. 2763
295 See Al-Mughnee, 6/44; and Ash-Sharh al-Kabeer, 11/288.
296 Al-Mughnee, 6/44; and Ash-Sharh al-Kabeer, 11/288.
297 See Kash-shaaf al-Qinaa', 3/203.
First Evidence
'Amr ibn 'Awf al-Muzanee (may Allah be pleased with him)
narrated that Allah's Messenger (may Allah's peace and blessings be
upon him) said, "Muslims ought to honour the conditions [they make]
except those conditions that make something lawful impermissible or
something unlawful permissible." 298
This hadeeth, they argue, show that such conditions which one or
both contracting parties stipulate are not forbidden because they do not
contravene any textual evidence from the Qur'an or the Sunnah.
Therefore, they are permissible. In fact, the parties to the contract
stipulate only those conditions which are bound to realise a certain
benefit for them, and conditions are essentially valid.
This argument was refuted in a number of ways including the
following:
1. The hadeeth is classified as 'weak' (dha'eef) because its chain of
transmitters (sanad) includes Katheer ibn 'Abdullaah ibn 'Amr ibn 'Awf
about whom Imaam Ahmad said, "He is munkar al-hadeeth,299 and his
narrations are not to be trusted." 300 Ash-Shaafi'ee also said about him,
"He is one of the liars" and "one of the leading notorious liars." 301
In response to this, it has been argued that At-Tirmidhee did classify
this hadeeth as 'saheeh' (authentic). Besides, in the course of discussing
this hadeeth, its chains of transmitters and the other Prophetic traditions
that support it, Ibn Taymiyyah (may Allah have mercy upon him)
writes, "Even though one of these chains of transmitters may be weak,
when they do come together from different ways, they lend support to
298 Reported by At-Tirmidhee in Al-Jaami', 3/634; and Ibn Maajah in As-Sunan, 2/788
from Katheer ibn 'Abdullah ibn 'Amr ibn 'Awf from his father from his grandfather
from the Prophet (may Allah's peace and blessing be upo n him). Abu Daawood also
reported it in As-Sunan, 3/304, on the authority of Abu Hurayrah. The chain of
transmitters (sanad) in Abu Daawood's report includes Al-Waleed ibn Rabaah.
299 Munkar (denounced) is a hadeeth which is reported by a weak narrator, and whose
al-Kutub edition.
301 See Tahdheeb at-Tahdheeb, 3/462.
one another." 302 In addition, the views of some leading jurists do not
constitute binding evidence against the views of others.
In refutation of this response, it has been argued that different
criticisms levelled by hadeeth scholars and experts at hadeeth narrators are
acceptable if such hadeeth narrators are not known for telling lies. In fact,
numerous leading hadeeth experts have accused Katheer ibn 'Abdullaah
of telling lies. Ash-Shaafi'ee and Abu Daawood said about him, "He is
one of the leading notorious liars." 303 Abu Zar'ah ar-Raazee also said,
"The narrations of Katheer ibn 'Abdullah from his father from his
grandfather are rather weak and smack of lying." 304 Ibn 'Abdul-Barr
(may Allah have mercy on him) went as far as to say that all hadeeth
experts are agreed that he is notoriously weak. 305 In fact, some hadeeth
experts have also accused At-Tirmidhee of being too lenient and too
tolerant towards the transmitter in question who is notorious for lying.
Adh-Dhahabee (may Allah have mercy on him) said, "At-Tirmidhee has
reportedly been quoted as classifying the hadeeth 'Conciliation between
Muslims is permissible' as 'saheeh' (authentic); therefore, Ath-
Thirmidee's classification of Prophetic traditions as authentic is not to be
depended on." 306 Al-Haafidh Ibn Hajar made excuses for At-Tirmidhee
after the latter's classification of the hadeeth as 'authentic' thus, "Maybe
he (i.e. At-Tirmidhee) took into account the large number of the chains
of transmitters [who narrated the hadeeth]." 307
2. Even if the hadeeth were to be categorized as 'authentic', it could
by no means be used as evidence of the validity of unknown optional
condition, as the act of stipulating an unknown optional condition
amounts to risk-taking and uncertainty (gharar). Therefore, even in the
highly unlikely event that the hadeeth is 'authentic', it ought to be used to
disallow stipulating such unjust conditions, not declaring them
permissible.
Second Evidence
People in general need such transactions along with the conditions
they stipulate, and the Lawgiver does not prohibit things which people
need in their transactions owing to a slight form of gharar (risk and
uncertainty) that might result from such transactions. Rather, He
permits anything people need in their dealings; an example of this is the
permissibility of selling dates before their benefit is evident to be kept on
the date palm trees until picking season [without causing any harm to
the seller].308
In response to this evidence, it has been argued that it is true that
what people need in their transactions should not be made
impermissible owing to a slight form of gharar (risk and uncertainty)
that might result from such transactions. However, what is to be done
regarding those transactions which involve a great deal of gharar and
disputes as a result of failure to fix a period of time for the optional
condition, for the price of the commodity, for instance, might fall
sharply compared with the price at the time of making the agreement?
After such a lengthy discussion of the various opinions and the
proofs proponents of these opinions have furnished in support of their
views as well as the responses made in refutation of such opinions by
their opponents, it becomes clear (Allah knows best) that the view which
has more in its favour is the third one, namely that the contract is valid
while the optional condition stipulated is void, and that the party whose
benefit is not realised as a result of dropping the condition can redress
this by rescinding the contract. However, it is worth noting that the
party that stipulates the indefinite or unspecified optional condition is
the buyer. If this buyer concludes a contract with the seller and
stipulates this optional condition without specifying a period of time
and then comes later to rescind the contract after the price of the
commodity has changed, people have done away with it, remain unsold,
or simply the period is so long that it has undergone some change, and
we say that the contract is valid but the condition is invalid and that the
party whose benefit is not realised as a result of dropping the condition
can redress this by rescinding the contract, the condition will in this case
309 See Ibn As-Subkee, Al-Ashbaah Wan-Nadhaa'ir, 1/41; Ahmad az-Zarqaa, Sharh al-
Qawaa'id al-Fiqhiyyah, p. 195 and Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/189.
310 This means whoever is responsible for damage or loss of an asset, deserves to receive
any earning, generated by that asset. Therefore, if a person buys a house and rents it,
then had to return it back because of a defect in the house, that person is the r ightful
owner of the rent paid to him during that period. This is because if anything goes
wrong with the house during that period it would be his responsibility. (Translator's
Note)
311 See Imaam Mansoor as-Sam'aanee, Qawaati' al-Adillah Fee al-Usool, 1/194; and 'Abdur-
stipulates at the time of sale that he has an option to rescind the sale within a certain
period of time. (Translator's Note)
313 See Badaa'i' as-Sanaa'i', 5/174 and 178; Al-Fataawaa al-Hindiyyah, 3/38-39; and Al-
Mabsoot, 13/40-41.
314 See Al-Majmoo', 9/191; and Asnaa al-Mataalib, 2/50-51.
Awzaa'ee315 , Ibn Shibrimah 316 and Zafar from amongst the Hanafites317
(may Allah have mercy upon them all).
Second Opinion: The period is to be estimated depending on the
difference between the various assets of the contract; if the asset of the
contract is a piece of cloth, for instance, then a period of one or two days
is stipulated; and if it is a house, then a period of approximately a month
may be stipulated. However, a long period of time which exceeds the
period that ought to be fixed for the asset in question must not be
stipulated. This is the view of Imaam Maalik (may Allah have mercy on
him).318
Third Opinion: It is allowable to stipulate an optional condition to
rescind the sale contract within a specific period of time to be agreed
upon by the contracting parties, whether such a period is long or short.
This is the view of the Hanbalites319 , and it was also adopted by Abu
Yoosuf and Muhammad ibn al-Hasan from amongst the Hanafites.320
The evidence furnished by proponents of the first and second
opinions have already been discussed at-length, and there is no need to
present it here again. However, the preponderant view is the third one
for the following reasons:
1. Optional conditions are originally and essentially valid and are
to be honoured, unless otherwise prohibited by textual evidence [from
the Qur'an or the Sunnah]. In fact, optional conditions are some of the
things which Almighty Allah has entirely left to the contracting parties
to decide on for their own benefit.
2. On the strength of the permissibility to stipulate an optional
condition within three days, it is also permissible to extend this period
because the reason behind such permissibility is people's need for
stipulating conditions. The buyer may not be certain as to the usefulness
of what he has purchased and would like to check it out and see for
himself whether it is useful or not; or he may need to seek an expert's
Wardiyyah, 2/430.
324 See Al-Mughnee, 6/40/43. According to ImaamAhmad's school of jurisprudence, there
are two opinions regarding the validity or invalidity of the contract in case the
optional condition becomes invalid.
325 A very important distinction of things in the sale contract is that between the so-called
mithlee (similars) and qeemee (dissimilars), the former are things which, when they
three pieces of cloth. If, however, the number of these items exceeds
three, the contract is null and void." 331
Second Opinion
It is permissible to stipulate an optional condition regarding one of
the two items of which the asset consists if the seller clearly states the
price of each item of the asset. This is the view of the Maalikites332 and is
also the view adopted by the Hanafites regarding 'similars'.333
The author of Al-Mudawwanah writes, "If [the buyer] stipulates —
when he purchases two pieces of cloth or two slaves from you — that he
will return one of them in such a state that the piece of cloth is rather
worn or the slave's price dropping in value by half and give you half the
price, then this is not objectionable, for in this case you have sold one of
the items and delayed the other one for the price which remains in the
possession of the buyer. This is absolutely acceptable." 334
Third Opinion
The condition is invalid, but the contract is void. This is the view of
the Hanbalite jurists (may Allah have mercy on them all). 335
Evidence Furnished by Proponents of these Opinions
Evidence Furnished by Proponents of the First Opinion
Those who maintain that both the condition and the contract are
invalid advance the following evidence in support of their view:
1. The tangible asset of the contract is not known, for only one of
the two items of the asset —which are different in value—will be sold;
therefore, this element of uncertainty and lack of knowledge regarding
items which are different in value renders the contract null and void. 336
2. Because the tangible asset of the contract is not known, this is
bound to lead to disputes, for one of the contracting parties may require
the opposite of what the other requires and claims that he is the party
entitled to the optional condition; or it may be the case that the party
entitled to the optional condition demands that one of the two items of
the asset be returned, and the other party claims that the item in dispute
is not the one regarding which the optional condition is stipulated. 337
Evidence Furnished by Proponents of the Second Opinion
The Maalikite jurists consider the optional condition here permissible
for the following reasons:
1. Because this amounts to selling one item of the asset and
postponing the other item until the end of the optional condition period
at a known price338 ; therefore, the element of uncertainty and lack of
knowledge is rather slight and has little effect in addition to people's
urgent need for stipulating such conditions. "[A man] may want to
purchase some clothes for his children and he does not like to take them
to the market, nor does the seller want to hand over the clothes to him
without a contract; in this case, he feels the need to enter into an
agreement by stipulating an optional condition." 339
2. Besides, the element of uncertainty and lack of knowledge
regarding the tangible asset of the contract is not that big because the
characteristics and the value are both known; thus, the difference
between the items of the asset with the knowledge of the characteristics
of these items and their price is deemed slight, and is similar to selling
the asset with a guarantee.
3. Furthermore, most items of sale in the markets fall in the
category of 'similars', whose parts and components are similar in such a
way that they can replace one another without any significant
difference. For instance, if [someone] buys clothes for his children and
stipulates two or three months for the optional condition and wants to
return the items before the end of the stipulated period, it is clear that
such items are not, for the most part, dissimilar. In fact, people need to
engage in such forms of transactions; moreover, it is well-known that
the harm that will be caused to people by considering such conditions
impermissible is actually more serious and greater than the slight harm
which is feared to cause mutual hatred and 'consuming other people's
property unjustly'; in reality, the Islamic Law (Sharee'ah) in its entirety is
352 For the statements of these jurists, see Ibn Abee Shaybah, Al-Musannaf, 10/582; and
Al-Mughnee, 8/71.
353 See Al-Mughnee, 8/71; Mataalib Ulee an-Nuhaa, 3/488; and Sharh Muntahaa al-
Iraadaat¸2/204.
354 See Al-Mughnee, 8/71.
355 Reported by Al-Bukhaaree, Book of Sale; and Fath al-Baaree, 4/568.
356 See Al-Mughnee, 8/71.
357 See Al-Mughnee¸8/71; and Fath al-Baaree, 4/569.
358 Ibn Qudaamah (may Allah have mercy on him) stated that Muslim scholars are
unanimously agreed on this. See Al-Mughnee, 8/14' Badaa'i' as-Sanaa'I', 4/193; Al-Bahr
ar-Raa'iq, 7/297; Al-Kharshee, Sharh Mukhtasar Khaleel, 7/3; Ash-Sharwaanee's
annotations on Tuhfat al-Muhtaaj Fee Sharh al-Minhaaj, 6/121; and Mataalib Ulee an-
Nuhaa, 3/587.
'Sell this garment for such-and-such a price, and whatever more you get
is for you.'" 359
They argue that this statement was made by of one of the Prophet's
companions, and no one in his time opposed his opinion. 360
2. The value of the price increases through sale, in which case the
transaction is similar to mudhaarabah 361 ; for if the mudhaarib
(entrepreneur) receives any profit after his service he becomes entitled to
it depending on what he and the investor have stipulated, and if he does
not receive any profit whatsoever, he does not get anything. This is
similar to the case under study. 362
In my estimation (but Allah knows best), it is the categorisation of
this form of transaction that is behind the disagreement among jurists.
Those who consider it a hire contract (ijaarah) do not regard it valid
because one of the conditions of the hire contract is knowledge of the
price. Those who do not deem it a form of ju'aalah 363 or wakaalah 364 are
also not agreed due to their differences as to the validity of ju'aalah
given the lack of knowledge of the price for performing a service (ju'l).365
I believe (but Allah knows best) that the form of transaction under
study is more similar to ju'aalah and wakaalah than to ijaarah (lease/hire)
reward. Legally, it is a contract for performing a given task against a prescribed fee in
a given period. A similar contract is 'ujrah' in which any work is done against
stipulated wage or fee. (Translator's Note)
364Wakaalah (agency) is a standard Islamic practice wherein X (the wakeel) acts as the
6/390.
366 See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/484; At-Taaj Wal-Ikleel,
7/595; Asnaa al-Mataalib, 2/440; and Al-Insaaf, 6/390.
367 See Al-Wasaatah at-Tijaariyah Fee al-Mu'aamalaat al-Maaliyah, p. 120.
368 See Al-Insaaf, 6/391.
times over is a clear indication of his greed and selfishness, but there is
no harm in concluding such contracts as long as both contracting parties
have agreed to this, and Muslims must abide by their conditions.
Furthermore, not every thing that is feared might lead to disputes
should be prevented, for the outbreak of such disputes may be due to
lack of religious awareness and failure to honour agreements. indeed,
the harm that results by considering such transactions impermissible is
actually more serious and greater than the mutual hatred and the
unlawful acquisition of wealth that is feared to arise, for the element of
uncertainty and risk-taking (gharar) in such transactions are slight [and
thus forgivable]. 369
If the commodity owner says [to the broker], "Sell this [item] for, say,
100 [dirhams] and take ten [dirhams]' —in which case remuneration in
terms of quality and quality is known — then such a transaction is
permissible, according to all Muslim jurists370 , except for the Hanafite
jurists who contend that [the broker] is not entitled to the specified
remuneration but rather to the wages prevalent in the market for his
service (ujrat al-mithl)371 . The reason for this, according to them, is that it
is not permissible to hire a broker to carry out the task 372 , and in case a
broker is hired the contract becomes null and void, based on their belief
that the ju'aalah contract should not be concluded.
Conclusions
In conclusion, I would like to highlight the most important points I have
discussed in the present paper, as follows:
1. The tasreef contract has four forms, namely:
a. Sale with a restrictive condition included in the contract . By
'restrictive condition/s' is meant the condition/s stipulated by the
contracting parties in their contracts which require extra obligations on their
behalf.
373 See Az-Zayla'ee, Tabyeen al-Haqaa'iq, 4/131; Al-Qaraafee, Al-Furooq, 1/229; Jawaahir al-
Ikleel, 1/248; Az-Zarkashee, Al-Manthoor fee al-Qawaa'id, 1/373; and Ibn Qaasim,
Haashiyat ar-Rawdh al-Murbi', 4/405.
374 In this type of contract, the form of acceptance is free from any conditions of
are all equivalent to the English 'if'; kullamaa and mataa maa, which both mean
'whenever; and mahmaa, which is equivalent to 'whenever' and 'whatever'. See Rawdhat
at-Taalibeen, 8/128; Al-Mughnee, 10/443; Fawaatih ar-Rahamoot, 1/248; Tayseer at-tahreer,
2/120; and At-Talweeh 'Alaa at-Tawdheeh, 1/120.
376 See Az-Zarkashee, Al-Manthoor Fee al-Qawaa'id, 1/270; Ash-Shaadhlee, Nadhariyat ash-
Shart, pp. 55-56; and Ash-Shart al-Jazaa'ee Wa Atharuhu fee Al-'Uqood al-Mu'aasirah, p.
82.
377This means to pledge or lodge a real or corporeal property of material value, in
accordance with the law, as security, for a debt or pecuniary obligation so as to make it
addition of certain matters which are not required by the contract, such as
buying firewood on condition of having it broken. 379
c. Concluding a sale contract with the option of stipulation 380 . As an
example of this form of transactions, the contracting parties conclude a sale
contract on condition that the buyer has the option to execute it or cancel it.
Some sellers fix a specific period of time for this option, such as one or more
weeks, to merchandise and sell the goods; otherwise, he will have to return
them to the seller. Some buyers fix an unknown period of time by saying,
for instance, "I have purchased the goods and I have the option to return the
tangible asset of the transaction (mabee') or part of it until the end of the
season." Some others do not specify any period of time whatsoever by
saying, for example, "I have bought the goods on condition that I have the
option to return the tangible asset of the transaction or part of it."
d. Delegating others to sell something for a known price and giving
the broker the amount exceeding the fixed price: An example of this is the
common practice of requesting store owners to sell a certain commodity for,
say, SR 100 and to take any money exceeding this amount. 381 In fact, this
from of transaction is next only to the first form in terms of practice, and it is
practised even more by the authorized trademark agents in a certain part of
the world (such as the authorized trademark agents of certain rug stores) in
that the trademark owners desire to market their products and thus request
some store owners to sell their products in this manner.
2. The preponderant view (Allah knows best) regarding the ruling on
the sale contract which is based on the condition that makes the transaction
possible for the creditor to recover the debt or some portion o f the goods or property.
(Translator's Note)
378The word Kafeel is derived from kafaalah which literally means responsibility or
amenability. Legally in kafaalah a third party becomes surety for the payment of a debt.
It is a pledge given to a creditor that the debtor will pay the debt, fine etc. Kafaalah in
Islamic law is the creation of an additional liability with regard to the claim, not to the
debt or assumption only of the liability and not of the debt. (Translator's Note)
379See Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 55-56.
380 The option of stipulation is termed in Arabic khiyyar ma'ash-shart and refers to the
condition stipulated by one or both of the parties to a contract to execute or cancel the
contract for any reason for a fixed period of time. See Radd al-Muhtaar, 4/565; Minah al-
Jaleel Sharh Mukhtasar Khaleel, 5/111-112; Kash-shaaf al-Qinaa', 3/202; and Nayl al-
Ma'aarib Fee Tahdheeb Sharh 'Umdat at-Taalib, 3/56.
381 See Al-Ghurar al-Bahiyyah Fee Sharh al-Bahjah al-Wardiyyah, 3/311.
382 See Ibn As-Subkee, Al-Ashbaah Wan-Nadhaa'ir, 1/41; Ahmad az-Zarqaa, Sharh al-
Qawaa'id al-Fiqhiyyah, p. 195 and Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/189.
383 This means whoever is responsible for damage or loss of an asset, deserves to receive
any earning, generated by that asset. Therefore, if a person buys a house and rents it,
then had to return it back because of a defect in the house, that person is the rightful
owner of the rent paid to him during that period. This is because if anything goes
wrong with the house during that period it would be his responsibility. (Translator's
Note)
384 See Imaam Mansoor as-Sam'aanee, Qawaati' al-Adillah Fee al-Usool, 1/194; and 'Abdur-