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Malik related to me from Humayd ibn Qays al-Makki that Mujahid
said, "Abdullah ibn Umar borrowed some dirhams from a man, then he
discharged his debt with dirhams better than them. The man said, 'Abu
Abdar-Rahman. These are better than the dirhams which I lent you.'
Abdullah ibn Umar said, 'I know that. But I am happy with myself about
that.' "
Malik said, "There is no harm in a person who has
borrowed gold, silver, food, or animals, taking to the person who lent
it, something better than what he lent, when that is not a stipulation
between them nor a custom. If that is by a stipulation or promise or
custom, then it is disapproved, and there is no good in it."
He said, "That is because the Messenger of Allah, may Allah bless him
and grant him peace, discharged his debt with a good camel in its
seventh year in place of a young camel which he borrowed, and Abdullah
ibn Umar borrowed some dirhams, and repaid them with better ones. If
that is from the goodness of the borrower, and it is not by a
stipulation, promise, or custom, it is halal and there is no harm in
it."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said that there was no harm in a man making an advance to another man
for food, with a set description and price until a set date, as long
as it was not in crops, or dates which had not begun to ripen.
Malik said, "The way of doing things among us concerning someone
who makes an advance for foodstuffs at a known rate until a stated
date, and the date arrives and he finds that there is not enough of
what he was sold with the seller to fulfill his order, and so he
revokes the sale, is that he must only take back the silver, gold, or
price which he paid exactly. He does not buy anything else from the
man for the same price until he has got back what he paid. That is
because if he took something else besides the price which he paid him
or exchanged it for goods other than the goods which he bought from
him, it would be selling food before getting delivery of it."
Malik said, "The Messenger of Allah, may Allah bless him and grant him
peace, forbade selling food before getting delivery of it."
Malik said that it was not good if the buyer regretted his purchase
and asked the seller to revoke the sale for him and he would not press
him immediately for what he had paid. The people of knowledge forbade
that. That was because when the food was made ready for the buyer by
the seller, the buyer deferred his due from the seller in order that
he might revoke the sale for him. That was the sale of food with
delayed terms before taking delivery of the food.
Malik said,
"The explanation of that is that when the date of delivery comes and
the buyer dislikes the food, the seller takes by it money to be paid
later and so it is not revocation. Revocation is that in which neither
the buyer nor the seller is increased. When increase occurs by
deferment of payment for a time period, or by anything which increases
one of them over the other or anything which gives one of them profit,
it is not revocation. When either of them do that, revocation becomes
a sale. There is an indulgence for revocation, partnership, and
transfer, as long as i ncrease, decrease, or deferment does not come
into them. If increase, decrease, or deferment comes into it, it
becomes a sale. Whatever makes a sale halal makes it halal and
whatever makes a sale haram makes it haram."
Malik said, "If
someone pays in advance for Syrian wheat, there is no harm if he takes
a load after the term falls due."
Malik said, "It is the same
with whoever advances for any kind of thing. There is no harm in him
taking better than whatever he has made an advance for or worse than
it after the agreed delivery date. The explanation of that is that if,
for instance, a man advances for a certain weight of wheat. There is
no harm if he decides to take some barley or Syrian wheat. If he has
made an advance for good dates, there is no harm if he decides to take
poor quality dates. If he paid in advance for red raisins, there is no
harm if he takes black ones, when it happens after the agreed delivery
date, and when the measure of what he takes is like the measure of
what he paid for in advance."
Yahya related to me from Malik from a reliable source from Amr
ibn Shuayb from his father from his father's father that the Messenger
of Allah, may Allah bless him and grant him peace, forbade
transactions in which nonrefundable deposits were paid.
Malik
said, "That is, in our opinion, but Allah knows best, that for
instance, a man buys a slave or slave-girl or rents an animal and then
says to the person from whom he bought the slave or leased the animal,
'I will give you a dinar or a dirham or whatever on the condition that
if I actually take the goods or ride what I have rented from you, then
what I have given you already goes towards payment of the goods or
hire of the animal. If I do not purchase the goods or hire the animal,
then what I have given you is yours without liability on your part.' "
Malik said, "According to the way of doing things with us
there is nothing wrong in bartering an arabic speaking merchant slave
for abyssinian slaves or any other type that are not his equal in
eloquence, trading, shrewdness, and know-how. There is nothing wrong
in bartering one slave like this for two or more other slaves with a
stated delay in the terms if he is clearly different. If there is no
appreciable difference between the slaves, two should not be bartered
for one with a stated delay in the terms even if their racial type is
different."
Malik said, "There is nothing wrong in selling
what has been bought in such a transaction before taking possession of
all of it as long as you receive the price for it from some one other
than the original owner."
Malik said, "An addition to the
price must not be made for a foetus in the womb of its mother when she
is sold because that is gharar (an uncertain transaction). It is not
known whether the child will be male or female, good-looking or ugly,
normal or handicapped, alive or dead. All these things will affect the
price."
Malik said that in a transaction where a slave or
slave-girl was bought for one hundred dinars with a stated credit
period that if the seller regretted the sale there was nothing wrong
in him asking the buyer to revoke it for ten dinars which he would pay
him immediately or after a period and he would forgo his right to the
hundred dinars which he was owed.
Malik said, "However, if
the buyer regrets and asks the seller to revoke the sale of a slave or
slave-girl in consideration of which he will pay an extra ten dinars
immediately or on credit terms, extended beyond the original term,
that should not be done. It is disapproved of because it is as if, for
instance, the seller is buying the one hundred dinars which is not yet
due on a year's credit term before the year expires for a slave-girl
and ten dinars to be paid immediately or on credit term longer than
the year. This falls into the category of selling gold for gold when
delayed terms enter into it."
Malik said that it was not
proper for a man to sell a slave-girl to another man for one hundred
dinars on credit and then to buy her back for more than the original
price or on a credit term longer than the original term for which he
sold her. To understand why that was disapproved of in that case, the
example of a man who sold a slave-girl on credit and then bought her
back on a credit term longer than the original term was looked at. He
might have sold her for thirty dinars with a month to pay and then buy
her back for sixty dinars with a year or half a year to pay. The
outcome would only be that his goods would have returned to him just
like they were and the other party would have given him thirty dinars
on a month's credit against sixty dinars on a year or half a year's
credit. That was not to be done.
Yahya related to me from Malik that Abu'r-Rijal Muhammad ibn Abd
ar-Rahman heard his mother, Amra bint Abd ar-Rahman say, "A man bought
the fruit of an enclosed orchard in the time of the Messenger of
Allah, may Allah bless him and grant him peace, and he tended it while
staying on the land. It became clear to him that there was going to be
some loss. He asked the owner of the orchard to reduce the price for
him or to revoke the sale, but the owner made an oath not to do so.
The mother of the buyer went to the Messenger of Allah, may Allah
bless him and grant him peace, and told him about it. The Messengerof
Allah, may Allah bless him and grant him peace, said, 'By this oath,
he has sworn not to do good.' The owner of the orchard heard about it
and went to the Messenger of Allah, may Allah bless him and grant him
peace, and said, 'Messenger of Allah, the choice is his.' "
Yahya related to me from Malik from Ibn Shihab from Malik ibn Aus
ibn al-Hadathan an-Nasri that one time he asked to exchange 100
dinars. He said, "Talha ibn Ubaydullah called me over and we made a
mutual agreement that he would make an exchange for me. He took the
gold and turned it about in his hand, and then said, 'I can't do it
until my treasurer brings the money to me from al-Ghaba.' Umar ibn al-
Khattab was listening and Umar said, 'By Allah! Do not leave him until
you have taken it from him!' Then he said, 'The Messenger of Allah,
may Allah bless him and grant him peace, said, "Gold for silver is
usury except hand to hand. Wheat for wheat is usury except hand to
hand. Dates for dates is usury except hand to hand. Barley for barley
is usury except hand to hand." "'
Malik said, "When a man
buys dirhams with dinars and then finds a bad dirham among them and
wants to return it, the exchange of the dinars breaks down, and he
returns the silver and takes back his dinars. The explanation of what
is disapproved of in that is that the Messenger of Allah, may Allah
bless him and grant him peace, said, 'Gold for silver is usury except
hand to hand.' and Umar ibn al-Khattab said, 'If someone asks you to
wait to be paid until he has gone back to his house, do not leave
him.' When he returns a dirham to him from the exchange after he has
left him, it is like a debt or something deferred. For that reason, it
is disapproved of, and the exchange collapses. Umar ibn al-Khattab
wanted that all gold, silver and food should not be sold for goods to
be paid later. He did not want there to be any delay or deferment in
any such sale, whether it involved one commodity or different sorts of
commodities."
Malik said, "It is the generally agreed on way of doing things
among us that the meat of camels, cattle, sheep and so on is not to be
bartered one for one, except like for like, weight for weight, from
hand to hand. There is no harm in that. If it is not weighed, then it
is estimated to be like for like from hand to hand."
Malik
said, "There is no harm in bartering the meat of fish for the meat of
camels, cattle, and sheep and so on two or more for one, from hand to
hand. If delayed terms enter the transaction however, there is no good
in it."
Malik said, "I think that poultry is different from
the meat of cattle and fish. I see no harm in selling some of it for
something different, more of one than another, from hand to hand. None
of that is to be sold on delayed terms."
Yahya related to me that Malik asked Ibn Shihab about selling
animals, two for one with delayed terms. He said, "There is no harm in
it."
Malik said, "The generally agreed on way of doing things
among us is that there is no harm in bartering a camel for a camel
like it and adding some dirhams to the exchange, from hand to hand.
There is no harm in bartering a camel for a camel like it with some
dirhams on top of the exchange, the camels to be exchanged from hand
to hand, and the dirhams to be paid within a period." He said, "There
is no good however in bartering a camel for a camel like it with some
dirhams on top of it, with the dirhams paid in cash and the camel to
be delivered later. If both the camel and the dirhams are deferred
there is no good in that either."
Malik said, "There is no
harm in buying a riding camel with two or more pack-camels, if they
are from inferior stock. There is no harm in bartering two of them for
one with delayed terms, if they are different and their difference is
clear. If they resemble each other whether their species are different
or not, two are not to be taken for one with delayed terms."
Malik said, "The explanation of what is disapproved of in that, is
that a camel should not be bought with two camels when there is no
distinction between them in speed or hardiness. If this is according
to what I have described to you, then one does not buy two of them for
one with delayed terms. There is no harm in selling those of them you
buy before you complete the deal to somebody other than the one from
whom you bought them if you get the price in cash."
Malik
said, "It is permitted for someone to advance something on animals for
a fixed term and describe the amount and pay its price in cash.
Whatever the buyer and seller have described is obliged for them. That
is still permitted behaviour between people and what the people of
knowledge in our land do."
Malik said, "The generally agreed on way of doing things among us
is that some one who buys some fruit, fresh or dry, should not resell
it until he gets full possession of it. He should not barter things of
the same type, except hand to hand. Whatever can be made into dry
fruit to be stored and eaten, should not be bartered for its own kind,
except hand to hand, like for like, when it is the same kind of fruit.
In the case of two different kinds of fruit, there is no harm in
bartering two of one kind for one of another, hand to hand on the
spot. It is not good to set delayed terms. As for produce which is not
dried and stored but is eaten fresh like water melon, cucumber, melon,
carrots, citron, medlars, pomegranates, and soon, which when dried no
longer counts as fruit, and is not a thing which is stored up as is
fruit, I think that it is quite proper to barter such things two for
one of the same variety hand to hand. If no term enters into it, there
is no harm in it."
Yahya related to me from Malik from Zayd ibn Aslam that Ata ibn
Yasar said, "The Messenger of Allah, may Allah bless him and grant him
peace, said, 'Dried dates for dried dates is like for like.' It was
said to him, 'Your agent in Khaybar takes one sa for two.' The
Messenger of Allah, may Allah bless him and grant him peace, said,
'all him to me.' So he was called for. The Messenger of Allah, may
Allah bless him and grant him peace, asked, 'Do you take one sa for
two?' He replied, 'Messengerof Allah! Why should they sell me good
dates for assorted low quality dates, sa for sa!' The Messenger of
Allah, may Allah bless him and grant him peace, said, 'Sell the
assorted ones for dirhams, and then buy the good ones with those
dirhams.' "
86 Malik related to me from Musa ibn Maysara that he heard a man
ask Said ibn al-Musayyab, "I am a man who sells for a debt." Said
said, "Do not sell except for what you take to your camel."
Malik spoke about a person who bought goods from a man provided that
he provide him with those goods by a specific date, either in time for
a market in which he hoped for their saleability, or to fulfil a need
at the time he stipulated. Then the seller failed him about the date,
and the buyer wanted to return those goods to the seller. Malik said,
"The buyer cannot do that, and the sale is binding on him. If the
seller does bring the goods before the completion of the term, the
buyer cannot be forced to take them."
Malik spoke about a
person who bought food and measured it. Then some one came to him to
buy it and he told him that he had measured it for himself and taken
it in full. The new buyer wanted to trust him and accept his measure.
Malik said, "Whatever is sold in this way for cash has no harm in it
but whatever is sold in this way on delayed terms is disapproved of
until the new buyer measures it out for himself. The sale with delayed
terms is disapproved of because it leads to usury and it is feared
that it will be circulated in this way without weight or measure. If
the terms are delayed it is disapproved of and there is no
disagreement about that with us."
Malik said, "One should not
buy a debt owed by a man whether present or absent, without the
confirmation of the one who owes the debt, nor should one buy a debt
owed to a man by a dead person even if one knows what the deceased man
has left. That is because to buy that is an uncertain transaction and
one does not know whether the transaction will be completed or not
completed."
He said, "The explanation of what is disapproved
of in buying a debt owed by someone absent or dead, is that it is not
known what unknown debtor may be connected to the dead person. If the
dead person is liable for another debt, the price which the buyer gave
on strength of the debt may become worthless."
Malik said,
"There is another fault in that as well. He is buying something which
is not guaranteed for him, and so if the deal is not completed, what
he paid becomes worthless. This is an uncertain transaction and it is
not good."
Malik said, "One distinguishes between a man who
is only selling what he actually has and a man who is being paid in
advance for something which is not yet in his possession. The man
advancing the money brings his gold which he intends to buy with. The
seller says, 'This is 10 dinars. What do you want me to buy for you
with it?' It is as if he sold 10 dinars cash for 15 dinars to be paid
later. Because of this, it is disapproved of. It is something leading
to usury and fraud."
Malik related to me from Yahya ibn Said from Abu Bakr ibn
Muhammad ibn Amr ibn Hazm from Umar ibn Abdal-Aziz from Abu Bakr ibn
Abd ar-Rahman ibn al-Harith ibn Hisham from Abu Hurayra that the
Messenger of Allah, may Allah bless him and grant him peace, said, "If
anyone goes bankrupt, and a man finds his own property intact with
him, he is more entitled to it than anyone else."
Malik spoke
about a man who sold a man wares, and the buyer went bankrupt. He
said, "The seller takes whatever of his goods he finds. If the buyer
has sold some of them and distributed them, the seller of the wares is
more entitled to them than the creditors. What the buyer has
distributed does not prevent the seller from taking whatever of it he
finds. It is the seller's right if he has received any of the price
from the buyer and he wants to return it to take what he finds of his
wares, and in what he does not find, he is like the creditors."
Malik spoke about some one who bought spun wool or a plot of land,
and then did some work on it, like building a house on the plot of
land or weaving the spun wool into cloth. Then he went bankrupt after
he had bought it, and the original owner of the plot said, "I will
take the plot and whatever structure is on it." Malik said, "That
structure is not his. However, the plot and what is in it that the
buyer has improved is appraised. Then one sees what the price of the
plot is and how much of that value is the price of the structure. They
are partners in that. The owner of the plot has as much as his
portion, and the creditors have the amount of the portion of the
structure."
Malik said, "The explanation of that is that the
value of it all is fifteen hundred dirhams. The value of the plot is
five hundred dirhams, and the value of the building is one thousand
dirhams. The owner of the plot has a third, and the creditors have
two-thirds."
Malik said, "It is like that with spinning and
other things of the same nature in these circumstances and the buyer
has a debt which he cannot pay. This is the behaviour in such cases."
Malik said, "As for goods which have been sold and which the
buyer does not improve, but those goods sell well and have gone up in
price, so their owner wants them and the creditors also want to seize
them, then the creditors choose between giving the owner of the goods
the price for which he sold them and not giving him any loss and
surrendering his goods to him.
"If the price of the goods has
gone down, the one who sold them has a choice. If he likes, he can
take his goods and he has no claim to any of his debtor's property,
and that is his right. If he likes, he can be one of the creditors and
take a portion of his due and not take his goods. That is up to him."
Malik said about someone who bought a slave-girl or animal
and she gave birth in his possession and the buyer went bankrupt, "The
slave-girl or the animal and the offspring belong to the seller unless
the creditors desire it. In that case they give him his complete due
and they take it."
Malik related to me that he had heard that Abdullah ibn Masud
used to relate that the Messenger of Allah, may Allah bless him and
grant him peace, said, "When two parties dispute about a business
transaction, the seller's word is taken, or they make an agreement
among themselves.
Malik spoke about someone who sold goods to
a man, and said at the contracting of the sale, 'I will sell to you
provided I consult so-and-so. If he is satisfied, the sale is
permitted. If he dislikes it, there is no sale between us.' They made
the transaction on that basis. Then the buyer regretted before the
seller consulted the person.
Malik said, "That sale is
binding on them according to what they described. The buyer has no
right of withdrawal, and it is binding on him, if the person whom the
seller stipulated to him, permits it."
Malik said, "The way
of doing things among us about a man who buys goods from another and
they differ about the price, and the seller says, 'I sold them to you
for ten dinars,' and the buyer says, 'I bought them from you for five
dinars,' is that it is said to the seller, 'If you like, give them to
the buyer for what he said. If you like, swear by Allah that you only
sold your goods for what you said.' If he swears it is said to the
buyer, 'Either you take the goods for what the seller said, or you
swear by Allah that you bought them only for what you said.' If he
swears, he is free to return the goods. That is when each of them
testifies against the other."
Yahya related to me, that Malik said, "The generally agreed on
way of doing things among us about a man buying cloth in one city, and
then taking it to another city to sell as a murabaha, is that he is
not reckoned to have the wage of an agent, or any allowance for
ironing, folding, straightening, expenses, or the rent of a house. As
for the cost of transporting the drapery, it is included in the basic
price, and no share of the profit is allocated to it unless the agent
tells all of that to the investor. If they agree to share the profits
accordingly after knowledge of it, there is no harm in that."
Malik said, "As for bleaching, tailoring, dyeing, and such things,
they are treated in the same way as drapery. The profit is reckoned in
them as it is reckoned in drapery goods. So if he sells the drapery
goods without clarifying the things we named as not getting profit,
and if the drapery has already gone, the transport is to be reckoned,
but no profit is given. If the drapery goods have not gone the
transaction between them is null and void unless they make a new
mutual agreement on what is to be permitted between them ."
Malik spoke about an agent who bought goods for gold or silver, and
the exchange rate on the day of purchase was ten dirhams to the dinar.
He took them to a city to sell murabaha, or sold them where he
purchased them according to the exchange rate of the day on which he
sold them. If he bought them for dirhams and he sold them for dinars,
or he bought them for dinars and he sold them for dirhams, and the
goods had not gone then he had a choice. If he wished, he accepted to
sell the goods and if he wished, he left them. If the goods had been
sold, he had the price for which the salesman bought them, and the
salesman was reckoned to have the profit on what they were bought for,
over what the investor gained as profit.
Malik said, "If a
man sells goods worth one hundred dinars for one hundred and ten, and
he hears after that they are worth ninety dinars, and the goods have
gone, the seller has a choice. If he likes, he has the price of the
goods on the day they were taken from him unless the price is more
than the price for which he was obliged to sell them in the first
place, and he does not have more than that - and it is one hundred and
ten dinars. If he likes, it is counted as profit against ninety unless
the price his goods reached was less than the value. He is given the
choice between what his goods fetch and the capital plus the profit,
which is ninety-nine dinars."
Malik said, "If someone sells
goods in murabaha and he says, 'It was valued at one hundred dinars to
me.' Then he hears later on, that it was worth one hundred and twenty
dinars, the customer is given the choice. If he wishes, he gives the
salesman the value of the goods on the day he took them, and if he
wishes, he gives the price for which he bought them according to the
reckoning of what profit he gives him, as far as it goes, unless that
is less than the price for which he bought them, for he should not
give the owner of the goods a loss from the price for which he bought
them because he was satisfied with that. The owner of the goods came
to seek extra, so the buyer has no argument against the salesman in
that to make a reduction from the first price for which he bought it
according to the list of contents."
Malik related to me from Yahya ibn Said that he heard Muhammad
ibn al-Munkadir say, "Allah loves his slave who is generous when he
sells, and generous when he buys, generous when he repays, and
generous when he is repaid."
Malik said about a man who
bought camels or sheep or dry goods or slaves or any goods without
measuring precisely, "There is no buying without measuring precisely
in anything which can be counted . "
Malik said about a man
who gave a man goods to sell for him and set their price saying, "If
you sell them for this price as I have ordered you to do, you will
have a dinar (or something which he has specified, which they are both
satisfied with), if you do not sell them, you will have nothing,"
"There is no harm in that when he names a price to sell them at and
names a known fee. If he sells the goods, he takes the fee, and if he
does not sell them, he has nothing."
Malik said, "This is
like saying to another man, 'If you capture my runaway slave or bring
my stray camel, you will have such-and-such.' This is from the
category of reward, and not from the category of giving a wage. Had it
been from the category of giving a wage, it would not be good."
Malik said, "As for a man who is given goods and told that if he
sells them he will have a named percentage for every dinar, that is
not good because whenever he is a dinar less than the price of the
goods, he decreases the due which was named for him. This is an
uncertain transaction. He does not know how much he will be given."
Yahya related to me from Malik that he had heard that the
Messenger of Allah, may Allah bless him and grant him peace, forbade
'selling and lending.'
Malik said, "The explanation of what
that meant is that one man says to another, 'I will take your goods
for such-and-such if you lend me such-and-such.' If they agree to a
transaction in this manner, it is not permitted. If the one who
stipulates the loan abandons his stipulation, then the sale is
permitted."
Malik said, "There is no harm in exchanging linen
from Shata, for garments from Itribi, or Qass, or Ziqa. Or the cloth
of Herat or Merv for Yemeni cloaks and shawls and such like as one for
two or three, from hand to hand or with delayed terms. If the goods
are of the same kind, and deferment enters into the transaction, there
is no good in it."
Malik said, "It is not good unless they
are different, and the difference between them is clear. When they
resemble each other, even if the names are different, do not take two
for one with delayed terms, for instance two garments of Herat for one
from Merv or Quhy with delayed terms, ortwo garments of Furqub for one
from Shata. All these sorts are of the same description, so do not buy
two for one, on delayed terms."
Malik said, "There is no harm
in selling what you buy of things of this nature, before you complete
the deal, to some one other than the person from whom you purchased
them if the price was paid in cash."
Malik spoke about what was done among them in the case of a group
of people who bought goods, drapery or slaves, and a man heard about
it and said to one of the group, "I have heard the description and
situation of the drapery goods you bought from so-and-so. Shall I give
you such-and-such profit to take over your portion?" This person
agreed, and the man gave him the profit and became a partner in his
place. When he looked at the purchase, he saw that it was ugly and
found it too expensive.
Malik said, "It is obliged on him and
there is no choice in it for him if he bought it according to a list
of contents and the description was well-known."
Malik spoke
about a man who had drapery goods sent to him, and salesmen came to
him and he read to them his list of contents and said, "In each bag is
such-and-such a wrap from Basra and such-and-such a light wrap from
Sabir. Their size is such-and-such," and he named to them types of
drapery goods by their sort, and he said, "Buy them from me according
to this description." They bought the bags according to what he
described to them, and then they bought them and found them too
expensive and regretted it. Malik said, "The sale is binding on them,
if the goods agree with the list of contents on which he sold them."
Malik said, "This is the way of doing things which people
still use today. They permit the sale among them when the goods agree
with the list of contents and are not different from it. "
Yahya related to me from Malik that Yahya ibn Said heard Jamil
ibn Abd ar-Rahman the Muadhdhin say to Said ibn al-Musayyab, "I am a
man who buys whatever Allah wills of the receipts for the provisions
which people are offered at al-Jar. I want to take payment for goods
that I guarantee to deliver at a future date." Said said to him, "Do
you intend to settle these things with receipts for provisions you
have bought?" He said, "Yes." So he forbade that.
Malik said,
"The generally agreed on way of doing things among us in which there
is no dispute, about buying food - wheat, barley, durra-sorghum, pearl
millet, or any pulse or anything resembling pulses on which zakat is
obliged, or condiments of any sort - oil, ghee, honey, vinegar,
cheese, sesame oil, milk and so on, is that the buyer should not re-
sell any of that until he has taken possession and complete delivery
of it.
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that Umar ibn al-Khattab said, "If a slave who has wealth is sold,
that wealth belongs to the seller unless the buyer stipulates its
inclusion."
Malik said, "The generally agreed upon way of
doing things among us is that if the buyer stipulates the inclusion of
the slave's property whether it be cash, debts, or goods of known or
unknown value, then they belong to the buyer, even if the slave
possesses more than that for which he was purchased, whether he was
bought for cash, as payment for a debt, or in exchange for goods. This
is possible because a master is not asked to pay zakat on his slave's
property. If a slave has a slave-girl, it is halal for him to have
intercourse with her by his right of possession. If a slave is freed
or put under contract (kitaba) to purchase his freedom, then his
property goes with him. If he becomes bankrupt, his creditors take his
property and his master is not liable for any of his debts."
Malik said there was no harm if a man who sold some drapery and
excluded some garments by their markings, stipulated that he chose the
marked ones from that. If he did not stipulate that he would choose
from them when he made the exclusion, I think that he is partner in
the number of drapery goods which were purchased from him. That is
because two garments can be alike in marking and be greatly different
in price.
Malik said, "The way of doing things among us is
that there is no harm in partnership, transferring responsibility to
an agent, and revocation when dealing with food and other things,
whether or not possession was taken, when the transaction is with
cash, and there is no profit, loss, or deferment of price in it. If
profit or loss or deferment of price from one of the two enters any of
these transactions, it becomes sale which is made halal by what makes
sale halal, and made haram by what makes sale haram, and it is not
partnership, transferring responsibility to an agent, or revocation."
Malik spoke about some one who bought drapery goods or
slaves, and the sale was concluded, then a man asked him to be his
partner and he agreed and the new partner paid the whole price to the
seller and then something happened to the goods which removed them
from their possession. Malik said, "The new partner takes the price
from the original partner and the original partner demands from the
seller the whole price unless the original partner stipulated on the
new partner during the sale and before the transaction with the seller
was completed that the seller was responsible to him. If the
transaction has ended and the seller has gone, the pre-condition of
the original partner is void, and he has the responsibility."
Malik spoke about a man who asked another man to buy certain goods to
share between them, and he wanted the other man to pay for him and he
would sell the goods for the other man. Malik said, "That is not good.
When he says, 'Pay for me and I will sell it for you,' it becomes a
loan which he makes to him in order that he sell it for him and if
those goods are destroyed, or pass, the man who paid the price will
demand from his partner what he put in for him. This is part of the
advance which brings in profit."
Malik said, "If a man buys
goods, and they are settled for him, and then a man says to him,
'Share half of these goods with me, and I will sell them all for you,'
that is halal, there is no harm in it. The explanation of that is that
this is a new sale and he sells him half of the goods provided that he
sells the whole lot."
Yahya related to me from Malik that Kathir ibn Farqad asked Abu
Bakr ibn Muhammad ibn Amr ibn Hazm about a man who sold food to be
delivered at a future date to a man for gold and then with the gold,
he bought dates before he had taken delivery of the gold. He
disapproved of that and forbade it.
Yahya related to me from
Malik from Ibn Shihab the like of that.
Malik said, ''Said
ibn al-Musayyab, Sulayman ibn Yasar, Abu Bakr ibn Muhammad ibn Amr ibn
Hazm, and Ibn Shihab forbade that a man sell wheat for gold and then
buy dates with that gold before he had received the gold from the
transaction in which he sold the wheat. There is no harm for someone
to buy dates on delayed terms, on the strength of the gold for which
he sold the wheat, from someone other than the person to whom he sold
the wheat before taking possession of the gold, and to refer the one
from whom he bought the dates to his debtor who bought the wheat, for
the gold he is owed for the dates."
Malik said, "I asked more
than one of the people of knowledge about that and they did not see
any harm in it."
Malik said, "Another example of that is that the Messenger of
Allah, may Allah bless him and grant him peace, forbade the sale
called muzabana and granted an indulgence in the ariya for computing
the equivalent in dates. It was distinguished between them that the
muzabana-sale was based on shrewdness and trade, and the ariya sale
was based on a favour rendered, and there was no shrewdness in it."
Malik said, "A man must not buy food for a fourth, a third,
or a fraction of a dirham on the basis that he be given that food on
credit. There is no harm in a man buying food for a fraction of a
dirham on credit and then he gives a dirham and takes goods with what
remains of his dirham because he gave the fraction he owed as silver,
and took goods to make up the rest of his dirham. There is no harm in
that transaction."
Malik said, "There is no harm in a man
placing a dirham with another man and then taking from him known goods
for a fourth, third, or a known fraction. If there was not a known
price on the goods and the man said, 'I will take them from you for
the price of each day,' this is not halal because there is
uncertainty. It might be less one time, and more another time, and
they would not part with a known sale."
Malik said, "If
someone sells some food without measuring precisely and does not
exclude any of it from the sale and then it occurs to him to buy some
of it, it is not good for him to buy any of it except what it would be
permitted for him to exclude from it. That is a third or less. If it
is more than a third, it becomes muzabana and is disapproved. He must
only purchase from what he would be permitted to exclude, and he is
only permitted to exclude a third or less than that. This is the way
of doing things in which there is no dispute with us."
And Malik related to me that he had heard that a man came to
Abdullah ibn Umar and said, "Abu Abd ar-Rahman, I gave a man a loan
and stipulated that he give me better than what I lent him." Abdullah
ibn Umar said, "That is usury." Abdullah said, "Loans are of three
types:
A free loan which you lend by which you desire the pleasure of
Allah, and so you have the pleasure of Allah. A free loan which you
lend by which you desire the pleasure of your companion, so you have
the pleasure of your companion, and a free loan which you lend by
which you take what is impure by what is pure, and that is usury." He
said, "What do you order me to do, Abu Abd ar-Rahman?" He said, "I
think that you should tear up the agreement. If he gives you the like
of what you lent him, accept it. If he gives you less than what you
lent him, take it and you will be rewarded. If he gives you better
than what you lent him, of his own good will, that is his gratitude to
you and you have the wage of the period you gave him the loan."
Malik said, "There is no harm in buying dates from specified
trees or a specified orchard or buying milk from specified sheep when
the buyer starts to take them as soon as he has payed the price. That
is like buying oil from a container. A man buys some of it for a dinar
or two and gives his gold and stipulates that it be measured out for
him. There is no harm in that. If the container breaks and the oil is
wasted, the buyer has his gold back and there is no transaction
between them."
Malik said, "There is no harm in everything
which is taken right away as it is, like fresh milk and fresh picked
dates which the buyer can take on a day-to-day basis. If the supply
runs out before the buyer has what he has paid for in full, the seller
gives him back the portion of the gold that is owed to him, or else
the buyer takes other goods from him to the value of what he is owed
and which they mutually agree about. The buyer should stay with the
seller until he has taken it. It is disapproved of for the seller to
leave because the transaction would then come into the forbidden
category of a debt for a debt. If a stated time period for payment or
delivery enters into the transaction, it is also disapproved. Delay
and deferment are not permitted in it, and are only acceptable when it
is standard practice on definite terms by which the seller guarantees
it to the buyer, but this is not to be from one specific orchard or
from any specific ewes."
Malik was asked about a man who
bought an orchard from another man in which there were various types
of palm-trees - excellent ajwa palms, good kabis palms, adhq palms and
othertypes. The seller kept aside from the sale the produce of a
certain palm of his choice. Malik said, "That is not good because if
he does that, and keeps aside, for instance, dates of the ajwa variety
whose yield would be 15 sa, and he picks the dates of the kabis in
their place, and the yield of their dates is 10 sa or he picks the
ajwa which yield 15 sa and leaves the kabis which yield 10 sa, it is
as if he bought the ajwa for the kabis making allowances for their
difference of quality. This is the same as if a man dealing with a man
who has heaps of dates before him - a heap of 15 sa of ajwa, a heap of
10 sa of kabis, and a heap of 12 sa of cadhq, gives the owner of the
dates a dinar to let him choose and take whichever of the heaps he
likes." Malik said, "That is not good."
Malik was asked what
a man who bought fresh dates from the owner of an orchard and advanced
him a dinar was entitled to if the crop was spoilt. Malik said, "The
buyer makes a reckoning with the owner of the orchard and takes what
is due to him of the dinar. If the buyer has taken two-thirds of a
dinar's worth of dates, he gets back the third of a dinar which is
owed him. If the buyer has taken three-quarters of a dinar's worth of
dates, then he gets back the quarter which is owed to him, or they
come to a mutual agreement, and the buyer takes what is owed him from
his dinar from the owner of the orchard in something else of his
choosing. If, for instance, he prefers to take dry dates or some other
goods, he takes them according to what is due. If he takes dry dates
or some other goods, he should stay with him until he has been paid in
full."
Malik said, "This is the same situation as hiring out
a specified riding-camel or hiring out a slave tailor, carpenter or
some other kind of worker or letting a house and taking payment in
advance for the hire of the slave or the rent of the house or camel.
Then an accident happens to what has been hired resulting in death or
something else. The owner of the camel, slave or house returns what
remains of the rent of the camel, the hire of the slave or the rent of
the house to the one who advanced him the money, and the owner reckons
what will settle that up in full. If, for instance, he has provided
half of what the man paid for, he returns the remaining half of what
he advanced, or according to whatever amount is due." Malik said,
"Paying in advance for something which is on hand is only good when
the buyer takes possession of what he has paid for as soon as he hands
over the gold, whether it be slave, camel, or house, or in the case of
dates, he starts to pick them as soon as he has paid the money."
It is not good that there be any deferment or credit in such a
transaction.
Malik said, "An example illustrating what is
disapproved of in this situation is that, for instance, a man may say
that he will pay someone in advance for the use of his camel to ride
in the hajj, and the hajj is still some time off, or he may say
something similar to that about a slave or a house. When he does that,
he only pays the money in advance on the understanding that if he
finds the camel to be sound at the time the hire is due to begin, he
will take it by virtue of what he has already paid. If an accident, or
death, or something happens to the camel, then he will get his money
back and the money he paid in advance will be considered as a loan."
Malik said, "This is distinct from someone who takes
immediate possession of what he rents or hires, so that it does not
fall into the category of 'uncertainty,' or disapproved payment in
advance. That is following a common practice. An example of that is
that a man buys a slave, or slave-girl, and takes possession of them
and pays their price. If something happens to them within the period
of the year indemnification contract, he takes his gold back from the
one from whom he bought it. There is no harm in that. This is the
precedent of the sunna in the matter of selling slaves."
Malik said, "Someone who rents a specified slave, or hires a specified
camel, for a future date, at which time he will take possession of the
camel or slave, has not acted properly because he did not take
possession of what he rented or hired, nor is he advancing a loan
which the person is responsible to pay back."
Yahya related to me from Malik that Yazid ibn Abdullah ibn Qusayt
saw Said ibn al-Musayyab sell gold counterpoising for gold. He poured
his gold into one pan of the scales, and the man with whom he was
counterpoising put his gold in the other pan of the scale and when the
tongue of the scales was balanced, they took and gave.
Malik
said, "According to the way things are done among us there is no harm
in selling gold for gold, and silver for silver by counterpoising
weight, even if 11 dinars are taken for 10 dinars hand to hand, when
the weight of gold is equal, coin for coin, even if the number is
different. Dirhams in such a situation are treated the same way as
dinars."
Malik said, "If, when counterpoising gold for gold
or silver for silver, there is a difference of weight, one party
should not give the other the value of the difference in silver or
something else. Such a transaction is ugly and a means to usury
because if one of the parties were permitted to take the difference
for a separate price, it could be as if he had bought it separately,
so he would be permitted. Then it would be possible for him to ask for
many times the value of the difference in order to permit the
completion of the transaction between the two parties.
Malik
said, "If he had really been sold the difference without anything else
with it, he would not have taken it for a tenth of the price for which
he took it in order to put a 'legal front' on the transaction. This
leads to allowing what is forbidden . The matter is forbidden."
Malik said that it was not good when counterpoising to give good
old gold coins and put along with them unminted gold in exchange for
worn kufic gold, which was unpopular and to then treat the exchange as
like for like.
Malik said, "The commentary on why that is
disapproved is that the owner of the good gold uses the excellence of
his old gold coins as an excuse to throw in the unminted gold with it.
Had it not been for the superiority of his (good) gold over the gold
of the other party, the other party would not have counterpoised the
unminted gold for his kufic gold, and the deal would have been
refused.
"It is like a man wanting to buy three sa of ajwa
dried dates for two sa and a mudd of kabis dates, and on being told
that it was not good, then offering two sa of kabis and a sa of poor
dates desiring to make the sale possible. That is not good because the
owner of the ajwa should not give him a sa of ajwa for a sa of poor
dates. He would only give him that because of the excellence of kabis
dates.
"Or it is like a man asking some one to sell him three
sa of white wheat for two and a half sa of Syrian wheat, and being
told that it was not good except like for like, and so offering two sa
of wheat and one sa of barley intending to make the sale possible
between them. That is not good because no one would have given a sa of
barley for a sa of white wheat had that sa been by itself. It was only
given because of the excellence of Syrian wheat over the white wheat.
This is not good. It is the same as the case of the unminted gold."
Malik said, "Where gold, silver and food, things which should
only be sold like for like, are concerned, something disliked and of
poor quality should not be put with something good and desirable in
order to make the sale possible and to make a bad situation halal.
When something of desirable quality is put with something of poor
quality and it is only included so that its excellence in quality is
noticed, something is being sold which if it had been sold on its own,
would not have been accepted and to which the buyer would not have
paid any attention. It is only accepted by the buyer because of the
superiority of what comes with it over his own goods. Transactions
involving gold, silver, or food, must not have anything of this
description enter into them. If the owner of the poor quality goods
wants to sell them, he sells them on their own, and does not put
anything with them. There is no harm if it is like that."
Yahya related to me from Malik from Ibn Shihab from Said ibn al-
Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, forbade muzabana and muhaqala. Muzabana was selling fresh
dates for dried dates. Muhaqala was buying unharvested wheat in
exchange for threshed wheat and renting land in exchange for wheat.
Ibn Shihab added that he had asked Said ibn al-Musayyab about
renting land for gold and silver. He said, "There is no harm in it."
Malik said, "The Messenger of Allah, may Allah bless him and
grant him peace, forbade muzabana. The explanation of muzabana is that
it is buying something whose number, weight and measure is not known
with something whose number, weight or measure is known, for instance,
if a man has a stack of food whose measure is not known, either of
wheat, dates, or whatever food, or the man has goods of wheat, date
kernels, herbs, safflower, cotton, flax, silk, and does not know its
measure or weight or number and then a buyer approaches him and
proposes that he weigh or measure or count the goods, but, before he
does, he specifies a certain weight, or measure, or number and
guarantees to pay the price for that amount, agreeing that whatever
falls short of that amount is a loss against him and whatever is in
excess of that amount is a gain for him. That is not a sale. It is
taking risks and it is an uncertain transaction. It falls into the
category of gambling because he is not buying something from him for
something definite which he pays. Everything which resembles this is
also forbidden."
Malik said that another example of that was,
for instance, a man proposing to another man, "You have cloth. I will
guarantee you from this cloth of yours so many hooded cloaks, the
measureof each cloak to be such-and-such, (naming a measurement).
Whatever loss there is, is against me and I will fulfill you the
specified amount and whatever excess there is, is mine." Or perhaps
the man proposed, "I will guarantee you from this cloth of yours so
many shirts, the measurement of each shirt to be such-and-such, and
whatever loss there is, is against me and I will fulfill the specified
amount and whatever excess there is, is mine." Or perhaps a man
proposed to a man who had cattle or camel hides, "I will cut up these
hides of yours into sandals on a pattern I will show you. Whatever
falls short of a hundred pairs, I will make up its loss and whatever
is over is mine because I guaranteed you." Another example was that a
man say to a man who had ben-nuts, "I will press these nuts of yours.
Whatever falls short of such-and-such a weight by the pound, I will
make it up, and whatever is more than that is mine."
Malik
said that all this and whatever else was like it or resembled it was
in the category of muzabana, which was neither good nor permitted. It
was also the same case for a man to say to a man, who had fodder
leaves, date kernels, cotton, flax, herbs or safflower, "I will buy
these leaves from you in exchange for such-and-such a sa, (indicating
leaves which are pounded like his leaves) . . or these date kernels
for such-and-such a sa of kernels like them, and the like of that in
the case of safflower, cotton, flax and herbs."
Malik said,
"All this is what we have described of muzabana."
Yahya related to me from Malik that he had heard that Muhammad
Sirin used to say, "Do not sell grain on the ears until it is white."
Malik said, "If someone buys food for a known price to be
delivered at a stated date, and when the date comes, the one who owes
the food says, 'I do not have any food, sell me the food which I owe
you with delayed terms.' The owner of the food says, 'This is not
good, because the Messenger of Allah, may Allah bless him and grant
him peace, forbade selling food until the deal was completed.' The one
who owes the food says to his creditor, 'Sell me any kind of food on
delayed terms until I discharge the debt to you.' This is not good
because he gives him food and then he returns it to him. The gold
which he gave him becomes the price of that which is his right against
him and the food which he gave him becomes what clears what is between
them. If they do that, it becomes the sale of food before the deal is
complete."
Malik spoke about a man who was owed food which he
had purchased from a man and this man was owed the like of that food
by another man. The one who owed the food said to his creditor, "I
will refer you to my debtor who owes me the same amount of food as I
owe you, so that you may obtain the food which I owe you ."
Malik said, "If the man who had to deliver the food, had gone out, and
bought the food to pay off his creditor, that is not good. That is
selling food before taking possession of it. If the food is an advance
which falls due at that particular time, there is no harm in paying
off his creditor with it because that is nota sale. It is not halal to
sell food before receiving it in full since the Messenger of Allah,
may Allah bless him and grant him peace, forbade that. However, the
people of knowledge agree that there is no harm in partnership,
transfer of responsibility and revocation in sales of food and other
goods."
Malik said, "That is because the people of knowledge
consider it as a favour rendered. They do not consider it as a sale.
It is like a man lending light dirhams. He is then paid back in
dirhams of full weight, and so gets back more than he lent. That is
halal for him and permitted. Had a man bought defective dirhams from
him as being the full weight, that would not be halal. Had it been
stipulated to him that he lend full weight in dirhams, and then he
gave faulty ones, that would not be halal for him."
Yahya related to me from Malik from Yahya ibn Said from Salim ibn
Abdullah that Abdullah ibn Umar sold one of his slaves for eight
hundred dirhams with the stipulation that he was not responsible for
defects. The person who bought the slave complained to Abdullah ibn
Umar that the slave had a disease which he had not told him about.
They argued and went to Uthman ibn Affan for a decision . The man
said, "He sold me a slave with a disease which he did not tell me
about." Abdullah said, "I sold to him with the stipulation that I was
not responsible." Uthman ibn Affan decided that Abdullah ibn Umar
should take an oath that he had sold the slave without knowing that he
had any disease. Abdullah ibn Umar refused to take the oath, so the
slave was returned to him and recovered his health in his possession.
Abdullah sold him afterwards for 1500 dirhams.
Malik said,
"The generally agreed upon way of doing things among us about a man
who buys a female slave and she becomes pregnant, or who buys a slave
and then frees him, or if there is any other such matter which has
already happened so that he cannot return his purchase, and a clear
proof is established that there was a fault in that purchase when it
was in the hands of the seller or the fault is admitted by the seller
or someone else, is that the slave or slave-girl is assessed for its
value with the fault it is found to have had on the day of purchase
and the buyer is refunded,from what he paid,the difference between the
price of a slave who is sound and a slave with such a defect.
Malik said, "The generally agreed upon way of doing things among us
regarding a man who buys a slave and then finds out that the slave has
a defect for which he can be returned and meanwhile another defect has
happened to the slave whilst in his possession, is that if the defect
which occurred to the slave in his possession has harmed him, like
loss of a limb, loss of an eye, or something similar, then he has a
choice. If he wants, he can have the price of the slave reduced
commensurate with the defect (he bought him with ) according to the
prices on the day he bought him, or if he likes, he can pay
compensation for the defect which the slave has suffered in his
possession and return him. The choice is up to him. If the slave dies
in his possession, the slave is valued with the defect which he had on
the day of his purchase. It is seen what his price would really have
been. If the price of the slave on the day of purchase without fault
was 100 dinars, and his price on the day of purchase with fault would
have been 80 dinars, the price is reduced by the difference. These
prices are assessed according to the market value on the day the slave
was purchased . "
Malik said, "The generally agreed upon way
of doing things among us is that if a man returns a slave girl in whom
he has found a defect and he has already had intercourse with her, he
must pay what he has reduced of her price if she was a virgin. If she
was not a virgin, there is nothing against his having had intercourse
with her because he had charge of her."
Malik said, "The
generally agreed upon way of doing things among us regarding a person,
whether he is an inheritor or not, who sells a slave, slave-girl, or
animal without a liability agreement is that he is not responsible for
any defect in what he sold unless he knew about the fault and
concealed it. If he knew that there was a fault and concealed it, his
declaration that he was free of responsibility does not absolve him,
and what he sold is returned to him."
Malik spoke about a
situation where a slave-girl was bartered for two other slave-girls
and then one of the slave-girls was found to have a defect for which
she could be returned. He said, "The slave-girl worth two other slave-
girls is valued for her price. Then the other two slave-girls are
valued, ignoring the defect which the one of them has. Then the price
of the slave-girl sold for two slave-girls is divided between them
according to their prices so that the proportion of each of them in
her price is arrived at - to the higher priced one according to her
higher price, and to the other according to her value. Then one looks
at the one with the defect, and the buyer is refunded according to the
amount her share is affected by the defect, be it little or great. The
price of the two slave-girls is based on their market value on the day
that they were bought."
Malik spoke about a man who bought a
slave and hired him out on a long-term or short-term basis and then
found out that the slave had a defect which necessitated his return.
He said that if the man returned the slave because of the defect, he
kept the hire and revenue. "This is the way in which things are done
in our city. That is because, had the man bought a slave who then
built a house for him, and the value of the house was many times the
price of the slave, and he then found that the slave had a defect for
which he could be returned, and he was returned, he would not have to
make payment for the work the slave had done for him. Similarly, he
would keep any revenue from hiring him out, because he had charge of
him. This is the way of doing things among us."
Malik said,
"The way of doing things among us when someone buys several slaves in
one lot and then finds that one of them has been stolen, or has a
defect, is that he looks at the one he finds has been stolen or the
one in which he finds a defect. If he is the pick of those slaves, or
the most expensive, or it was for his sake that he bought them, or he
is the one in whom people see the most excellence, then the whole sale
is returned. If the one who is found to be stolen or to have a defect
is not the pick of the slaves, and he did not buy them for his sake,
and there is no special virtue which people see in him, the one who is
found to have a defect or to have been stolen is returned as he is,
and the buyer is refunded his portion of the total price."
Yahya related to me from Malik that he had heard that al-Qasim
ibn Muhammad was asked about a man who bought goods for 10 dinars cash
or fifteen dinars on credit. He disapproved of that and forbade it.
Malik said that if a man bought goods from a man for either
10 dinars or 15 dinars on credit, that one of the two prices was
obliged on the buyer. It was not to be done because if he postponed
paying the ten, it would be 15 on credit, and if he paid the ten, he
would buy with it what was worth fifteen dinars on credit.
Malik said that it was disapproved of for a man to buy goods from
someone for either a dinar cash or for a described sheep on credit and
that one of the two prices was obliged on him. It was not to be done
because the Messenger of Allah, may Allah bless him and grant him
peace, forbade two sales in one sale. This was part of two sales in
the one sale.
Malik spoke about a man saying to another, "'I
will either buy these fifteen sa of ajwa dates from you, or these ten
sa of sayhani dates or I will buy these fifteen sa of inferior wheat
or these ten sa of Syrian wheat for a dinar, and one of them is
obliged to me.' Malik said that it was disapproved of and was not
halal. That was because he obliged him ten sa of sayhani, and left
them and took fifteen sa of ajwa, or he was obliged fifteen sa of
inferior wheat and left them and took ten sa of Syrian wheat. This was
also disapproved of, and was not halal. It resembled what was
prohibited in the way of two sales in one sale. It was also included
under the prohibition against buying two for one of the same sort of
food."
Yahya related to me from Malik from Zayd ibn Aslam from Ata ibn
Yasar that Abu Rafi, the mawla of the Messenger of Allah, may Allah
bless him and grant him peace, said, "The Messenger of Allah, may
Allah bless him and grant him peace, borrowed a young camel and then
the camels of sadaqa came to him." Abu Rafi said, "He ordered me to
repay the man his young camel. I said, 'I can only find a good camel
in its seventh year in the camels.' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'Give it to him. The best of
people are those who discharge their debts in the best manner.' "
Yahya related to me from Malik from Abd al-Hamid ibn Suhayl ibn
Abd ar-Rahman ibn Awf from Said ibn al-Musayyab from Abu Said al-
Khudri and from Abu Hurayra that the Messenger of Allah, may Allah
bless him and grant him peace, appointed a man as an agent in Khaybar,
and he brought him some excellent dates. The Messenger of Allah, may
Allah bless him and grant him peace, said to him, "Are all the dates
of Khaybar like this?" He said,"No. By Allah, Messenger of Allah! We
take a sa of this kind for two sa or two sa for three." The Messenger
of Allah, may Allah bless him and grant him peace, said, "Do not do
that. Sell the assorted ones for dirhams and then buy the good ones
with the dirhams."
Yahya related to me from Malik from Yahya ibn Said that al-Qasim
ibn Muhammad said, ''I heard Abdullah ibn Abbas say, when a man asked
him about a man making an advance on some garments and then wanting to
sell them back before taking possession of them, 'That is silver for
silver,' and he disapproved of it."
Malik said, "Our opinion
is - and Allah knows best that was because he wanted to sell them to
the person from whom he had bought them for more than the price for
which he bought them. Had he sold them to some one other than the
person from whom he had purchased them, there would not have been any
harm in it."
Malik said, "The generally agreed on way of
doing things among us concerning making an advance for slaves, cattle
or goods is that when all of what is to be sold is described and an
advance is made for them for a date, and the date falls due, the buyer
does not sell any of that to the person from whom he has purchased it
for more than the price which he advanced for it before he has taken
full possession of what he has advanced for. It is usury if he does.
If the buyer gives the seller dinars or dirhams and he profits with
them, then, when the goods come to the buyer and he does not take them
into his possession but sells them back to their owner for more than
what he advanced for them, the outcome is that what he has advanced
has returned to him and has been increased for him."
Malik
said, "If someone advances gold or silver for described animals or
goods which are to be delivered before a named date, and the date
arrives, or it is before or after the date, there is no harm in the
buyer selling those goods to the seller, for other goods, to be taken
immediately and not delayed, no matter how extensive the amount of
those goods is, except in the case of food because it is not halal to
sell it before he has full possession of it. The buyer can sell those
goods to some one other than the person from whom he purchased them
for gold or silver or any goods. He takes possession of it and does
not defer it because if he defers it, that is ugly and there enters
into the transaction what is disapproved of:
delay for delay. Delay
for delay is to sell a debt against one man for a debt against another
man."
Malik said, "If someone advances for goods to be
delivered after a time, and those goods are neither something to be
eaten nor drunk, he can sell them to whomever he likes for cash or
goods, before he takes delivery of them, to some one other than the
person from whom he purchased them. He must not sell them to the
person from whom he bought them except in exchange for goods which he
takes possession of immediately and does not defer."
Malik
said, "If the delivery date for the goods has not arrived, there is no
harm in selling them to the original owner for goods which are clearly
different and which he takes immediate possession of and does not
defer."
Malik spoke about the case of a man who advanced
dinars or dirhams for four specified pieces of cloth to be delivered
before a specified time and when the term fell due, he demanded
delivery from the seller and the seller did not have them. He found
that the seller had cloth but inferior quality, and the seller said
that he would give him eight of those cloths. Malik said, "There is no
harm in that if he takes the cloths which he offers him before they
separate. It is not good if delayed terms enter into the transaction.
It is also not good if that is before the end of the term, unless he
sells him cloth which is notthetypeof cloth for which he made an
advance.
Malik said, "The generally agreed on way of doing things among us
about whatever is weighed but is not gold or silver, i.e. copper,
brass, lead, black lead, iron, herbs, figs, cotton, and any such
things that are weighed, is that there is no harm in bartering all
those sorts of things two for one, hand to hand. There is no harm in
taking a ritl of iron for two ritls of iron, and a ritl of brass for
two ritls of brass."
Malik said, "There is no good in two for
one of one sort with delayed terms. There is no harm in taking two of
one sort for one of another on delayed terms, if the two sorts are
clearly different. If both sorts resemble each other but their names
are different, like lead and black lead, brass and yellow brass, I
disapprove of taking two of one sort for one of the other on delayed
terms."
Malik said, "When buying something of this nature,
there is no harm in selling It beforetaking possession of it to some
one other than the person from whom it was purchased, if the price is
taken immediately and if it was bought originally by measure or
weight. If it was bought without measuring, it should be sold to
someone other than the person from whom it was bought, for cash or
with delayed terms. That is because goods have to be guaranteed when
they are bought without measuring, and they cannot be guaranteed when
bought by weight until they are weighed and the deal is completed.
This is the best of what I have heard about all these things. It is
what people continue to do among us."
Malik said, "The way of
doing things among us with what is measured or weighed of things which
are not eaten or drunk, like safflower, date-stones, fodder leaves,
indigo dye and the like of that is that there is no harm in bartering
all those sort of things two for one, hand to hand. Do not take two
for one from the same variety with delayed terms. If the types are
clearly different, there is no harm in taking two of one for one of
the other with delayed terms. There is no harm in selling whatever is
purchased of all these sorts, before taking delivery of them if the
price is taken from someone other than the person from whom they were
purchased."
Malik said, "Anything of any variety that profits
people, like gravel and gypsum, one quantity of them for two of its
like with delayed terms is usury. One quantity of both of them for its
equal plus any increase with delayed terms, is usury."
Yahya related to me from Malik from Abu Hazim ibn Dinar from Said
ibn al-Musayyab that the Messenger of Allah, may Allah bless him and
grant him peace, forbade the sale with uncertainty in it.
Malik said, "An example of one type of uncertain transaction and risk
is that a man intends the price of a stray animal or escaped slave to
be fifty dinars. A man says, 'I will take him from you for twenty
dinars.' If the buyer finds him, thirty dinars goes from the seller,
and if he does not find him, the seller takes twenty dinars from the
buyer."
Malik said, "There is another fault in that. If that
stray is found, it is not known whether it will have increased or
decreased in value or what defects may have befallen it. This
transaction is greatly uncertain and risky."
Malik said,
"According to our way of doing things, one kind of uncertain
transaction and risk is selling what is in the wombs of females -
women and animals - because it is not known whether or not it will
come out, and if it does come out, it is not known whether it will be
beautiful or ugly, normal or disabled, male or female. All that is
disparate. If it has that, its price is such-and-such, and if it has
this, its price is such-and-such."
Malik said, "Females must
not be sold with what is in their wombs excluded. That is that, for
instance, a man says to another, 'The price of my sheep which has much
milk is three dinars. She is yours for two dinars while I will have
her future offspring.' This is disapproved because it is an uncertain
transaction and a risk."
Malik said, "It is not halal to sell
olives for olive oil or sesame for sesame oil, or butter for ghee
because muzabana comes into that, because the person who buys the raw
product for something specified which comes from it, does not know
whether more or less will come out of that, so it is an uncertain
transaction and a risk."
Malik said, "A similar case is the
selling of ben-nuts for ben-nut oil. This is an uncertain transaction
because what comes from the ben-nut is ben-oil. There is no harm in
selling ben-nuts for perfumed ben because perfumed ben has been
perfumed, mixed and changed from the state of raw ben-nut oil."
Malik, speaking about a man who sold goods to a man on the
provision that there was to be no loss for the buyer, (i.e. if the
buyer could not re-sell the goods they could go back to the seller),
said, "This transaction is not permitted and it is part of risk. The
explanation of why it is so, is that it is as if the seller hired the
buyer for the profit if the goods make a profit. If he sells the stock
at a loss, he has nothing, and his efforts are not compensated. This
is not good. In such a transaction, the buyer should have a wage
according to the work that he has contributed. Whatever there is of
loss or profit in those goods is for and against the seller. This is
only when the goods are gone and sold. If they do not go, the
transaction between them is null and void."
Malik said, "As
for a man who buys goods from a man and he concludes the sale and then
the buyer regrets and asks to have the price reduced and the seller
refuses and says, 'Sell it and I will compensate you for any loss.'
There is no harm in this because there is no risk. It is something he
proposes to him, and their transaction was not based on that. That is
what is done among us."
Malik related to me from Abu'z-Zinad from al-Araj from Abu
Hurayra that the Messenger of Allah, may Allah bless him and grant him
peace, said, "Do not go out to meet the caravans for trade, do not bid
against each other, outbidding in order to raise the price, and a
townsman must not buy on behalf of a man of the desert, and do not tie
up the udders of camels and sheep so that they appear to have a lot of
milk, for a person who buys them after that has two recourses open to
him after he milks them. If he is pleased with them, he keeps them and
if he is displeased with them, he can return them along with a sa of
dates."
Malik said, "The explanation of the words of the
Messenger of Allah, may Allah bless him and grant him peace, according
to what we think - and Allah knows best - 'do not bid against each
other,' is that it is forbidden for a man to offer a price over the
price of his brother when the seller has inclined to the bargainer and
made conditions about the weight of the gold and he has declared
himself not liable for faults and such things by which it is
recognised that the seller wants to make a transaction with the
bargainer. This is what he forbade, and Allah knows best."
Malik said, "There is no harm, however, in more than one person
bidding against each other over goods put up for sale."
He
said, "Were people to leave off haggling when the first person started
haggling, an unreal price might be taken and the disapproved would
enter into the sale of the goods. This is still the way of doing
things among us."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
would say, "A man should not have intercourse with a slave girl except
one whom, if he wished, he could sell, if he wished, he could give
away, if he wished, he could keep, if he wished, he could do with her
what he wanted ."
Malik said that a man who bought a slave-
girl on condition that he did not sell her, give her away, or do
something of that nature, was not to have intercourse with her. That
was because he was not permitted to sell her or to give her away, so
if he did not own that from her, he did not have complete ownership of
her because an exception had been made concerning her by the hand of
someone else. If that sort of condition entered into it, it was a
messy situation, and the sale was not recommended.
Malik related to me that Zayd ibn Aslam said, "Usury in the
Jahiliyya was that a man would give a loan to a man for a set term.
When the term was due, he would say, 'Will you pay it off or increase
me?' If the man paid, he took it. If not, he increased him in his debt
and lengthened the term for him ."
Malik said, "The
disapproved of way of doing things about which there is no dispute
among us, is that a man should give a loan to a man for a term, and
then the demander reduce it and the one from whom it is demanded pay
it in advance. To us that is like someone who delays repaying his debt
after it is due to his creditor and his creditor increases his debt."
Malik said, "This is nothing else but usury. No doubt about it."
Malik spoke about a man who loaned one hundred dinars to a man for
two terms. When it was due, the person who owed the debt said to him,
"Sell me some goods, whose price is one hundred dinars in cash for one
hundred and fifty on credit." Malik said, "This transaction is not
good, and the people of knowledge still forbid it."
Malik
said, "This is disapproved of because the creditor himself gives the
debtor the price of what the man sells him, and he defers repayment of
the hundred of the first transaction for the debtor for the term which
is mentioned to him in the second transaction, and the debtor
increases him with fifty dinars for his deferring him. That is
disapproved of and it is not good. It also resembles the hadith of
Zayd ibn Aslam about the transactions of the people of the Jahiliyya.
When their debts were due, they said to the person with the debt,
'Either you pay in full or you increase it.' If they paid, they took
it, and if not they increased debtors in their debts, and extended the
term for them."
Yahya related to me from Malik that he had heard the same as that
from al-Qasim ibn Muhammad from Ibn Muayqib ad-Dawsi.
Malik
said, "This is the way of doing things among us . "
Malik
said, "The generally agreed on way of doing things among us is that
wheat is not sold for wheat, dates for dates, wheat for dates, dates
for raisins, wheat for raisins, nor any kind of food sold for food at
all, except from hand to hand. If there is any sort of delayed terms
in the transaction, it is not good. It is haram. Condiments are not
bartered except from hand to hand."
Malik said, "Food and
condiments are not bartered when they are the same type, two of one
kind for one of the other. A mudd of wheat is not sold for two mudds
of wheat, nor a mudd of dates for two mudds of dates, nor a mudd of
raisins for two mudds of raisins, nor is anything of that sort done
with grains and condiments when they are of one kind, even if it is
hand to hand.
"This is the same position as silver for silver
and gold for gold. No increase is halal in the transaction, and only
like for like, from hand to hand is halal."
Malik said, "If
there is a clear difference in foodstuffs which are measured and
weighed, there is no harm in taking two of one kind for one of
another, hand to hand. There is no harm in taking a sa of dates for
two sa of wheat, and a sa of dates for two sa of raisins, and a sa of
wheat for two sa of ghee. If the two sorts in the transaction are
different, there is no harm in two for one or more than that from hand
to hand. If delayed terms enter into the sale, it is not halal ."
Malik said, "It is not halal to trade a heap of wheat for a heap
of wheat. There is no harm in a heap of wheat for a heap of dates,
from hand to hand. That is because there is no harm in buying wheat
with dates without precise measurement."
Malik said, "With
kinds of foods and condiments that differ from each other, and the
difference is clear, there is no harm in bartering one kind for
another, without precise measurement from hand to hand. If delayed
terms enter into the sale, there is no good in it. Bartering such
things without precise measurement is like buying it with gold and
silver without measuring precisely."
Malik said, "That is
because you buy wheat with silver without measuring precisely, and
dates with gold without measuring precisely, and it is halal. There is
no harm in it."
Malik said, "It is not good for someone to
make a heap of food, knowing its measure and then to sell it as if it
had not been measured precisely, concealing its measure from the
buyer. If the buyer wants to return that food to the seller, he can,
because he concealed its measure and so it is an uncertain
transaction. This is done with any kind of food or other goods whose
measure and number the seller knows, and which he then sells without
measurement and the buyer does not know that. If the buyer wants to
return that to the seller, he can return t. The people of knowledge
still forbid such a transaction."
Malik said, "There is no
good in selling one round loaf of bread for two round loaves, nor
large for small when some of them are bigger than others. When care is
taken that they are like for like, there is no harm in the sale, even
if they are not weighed."
Malik said, "It is not good to sell
a mudd of butter and a mudd of milk for two mudds of butter. This is
like what we described of selling dates when two sa of kabis and a sa
of poor quality dates were sold for three sa of ajwa dates after the
buyer had said to the seller, 'Two sa of kabis dates for three sa of
ajwa dates is not good,' and then he did that to make the transaction
possible. The owner of the milk puts the milk with his butter so that
he can use the superiority of his butter over the butter of the other
party to put his milk in with it."
Malik said, "Flour for
wheat is like for like, and there is no harm in that. That is if he
does not mix up anything with the flour and sell it for wheat, like
for like. Had he put half a mudd of flour and half of wheat, and then
sold that for a mudd of wheat, it would be like what we described, and
it would not be good because he would want to use the superiority of
his good wheat to put flour along with it. Such a transaction is not
good."
Yahya related to me from Malik that Yahya ibn Said heard Said ibn
al-Musayyab say, "Keeping gold and silver out of circulation is part
of working corruption in the land."
Malik said, "There is no
harm in buying gold with silver or silver with gold without measuring
if it is unminted or a piece of jewellery which has been made. Counted
dirhams and counted dinars should not be bought without reckoning
until they are known and counted. To abandon number and buy them at
random would only be to speculate. That is not part of the business
transactions of Muslims. As for what is weighed of unminted objects
and jewellery, there is no harm in buying such things without
measuring. To buy them without measuring is like buying wheat, dried
dates, and such food-stuffs, which are sold without measuring, even
though things like them are measured "
Malik spoke about
buying a Qur'an, a sword or a signet ring which had some gold or
silver work on it with dinars or dirhams. He said, "The value of the
object bought with dinars, which has gold in it is looked at. If the
value of the gold is up to one-third of the price, it is permitted and
there is no harm in it if the sale is hand to hand and there is no
deferment in it. When something is bought with silver which has silver
in it, the value is looked at. If the value of the silver is one-
third, it is permitted and there is no harm in it if the sale is hand
to hand. That is still the way of doing things among us."
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