#5 The Things Exchanged in a Transaction Part II: Lawful Disposal Over the Property, Being Determinately Known
Introduction
Islamic transactions have key principles, including the rules for the lawful disposal of property and the requirement that items be determinately known. It examines scenarios like selling collateral with or without an owner’s permission, selling properties that belong to another person, and handling transactions that involve unseen or unspecified items. This article highlights the importance of clarity in transactions and adhering to the Shariah principles to ensure fairness and validity in trade.
| Notes from Ustaz Anwar | English Translation | Arabic Text |
| Only valid if the person allows for the pawnbroker to sell the item. Or if they cannot pay the required amount, then can sell the collateral item. | It is not valid for the owner of an article that has been put up as collateral to sell it without the permission of the person to whom the collateral has been given. | ولا يجوزُ بيعُ المرهونِ دونَ إذنِ المرتهِنِ |
| E.g. someone goes to his friend’s store, there’s a customer at the store but the friend is not there. So the person conducted a sale transaction without their friend knowing, this is considered invalid. Unless a representative is being appointed by the seller. Eg. Zaid represented Ahmad to sell if any customer wanted to purchase something. | Nor is it valid to sell property belonging to another, unless the seller is the owner’s guardian or authorized representative. | ولا بيعُ الفُضوليِّ وهوَ أنْ يبيعَ مالَ غيرهِ بغيرِ ولايةٍ ولا وكالةٍ |
| Which one is being bought? Item is not specified. Another example, there are two handphones, Nokia and Samsung. The seller then said “I sell one of these phones”. This transaction is invalid. The item has to be specified – “I sell this Nokia phone to you”. | It is not valid to sell property not determinately identified such as “one of these two garments” (0: since “one of them” is not an identification. Likewise with saying, “I sell you one of these sheep.” It makes no difference whether all the objects are of equal or unequal value). | ولا بيعُ ما لمْ يُعيَّنْ كأحدِ العبدينِ |
| E.g a seller wants to sell his bicycle at home. The buyer has never seen the bicycle at all, and just bought it. This is an invalid transaction, as the buyer does not know what he is purchasing, which can lead to gharar (uncertainty) and lying. | It is not valid to transact a particular thing that is not in view (0: meaning that it has not been seen by both buyer and seller or by one of them) such as saying, “I sell you the Mervian robe I have up my sleeve,” | ولا بيعُ عَيٍن غائبةٍ عن العَينِ مثلُ بعتُكَ الثوبَ المرْوزيِّ الذي في كُمِّي |
| Although the horse is not present during the sale transaction, it is considered valid, because you have seen the horse previously. (referring to the next statement) | or “the black horse that is in my stable.” | والفرسَ الأدهمَ الذي في اصطبلي |
| “Within the time elapsed” refers to the period that is normally or generally accepted. For example, 3 days ago you saw the bicycle that you want to purchase. After 3 days, you went back and decided to purchase it. This sale transaction is valid, as the bicycle would not have changed during the period. This is different from food and drinks – like bread that has been left for 2 weeks can spoil. However, the period also has to be reasonable. Like you cannot say that you want to purchase it after 2 years, even if it is buying items like bicycles, handphone, etc. | But if the buyer has seen it before and the article is something that does not generally change within the time that has elapsed since it was last seen, then such sales are valid. | فإنْ كانَ المشتري رآها قبلَ ذلكَ وهيَ مما لا يتغيرُ في مدةِ الغَيْبةِ غالباً جازَ |
| The condition is that we have to see the bag, and that there is something in it – i.e the item we want to purchase, which in this example is a pile of wheat. It is unnecessary to know how much it weighs for the transaction to be valid. | It is permissible to sell something like a pile of wheat that is in plain view when its weight is unknown, | ولوْ باعَ عُرْمةَ حنطةٍ ونحوها وهيَ مشاهدةٌ ولمْ يُعلمْ كيلُها |
| The point above summarises this portion, too. You do not need to know how much the item weighs, but the item has to be inside the purse/bag. | or to sell something for a heap of silver that is visible when the silver’s weight is unknown, for seeing is sufficient. | أوْ باعَ شيئاً بعُرْمةِ فضةٍ مشاهدةٍ ولمْ يُعلمْ وزنها جازَ، وتكفي الرؤيةُ |
| A blind person is not permitted to conduct sale transactions, as they are unable to see. | The selling and buying of a blind person are not valid. | ولا يصحُّ بيعُ الأعمى ولا شراؤهُ |
| The only way is to conduct sale transactions through appointing a representative. Although this only applies for the Shafi’ee school of thought. | He must commission another to buy and sell for him (A: though the Hanafi, Maliki, and Hanabali schools permit him to buy and sell for himself). | وطريقُهُ التوكيلُ |
| Buying in advance is permitted, as the item’s characteristics is being described to him, although the person is unable to see physically. | It is valid for a blind person to buy in advance or for another to buy in advance from him, provided the payment is forwarded to and held by the person being bought from in advance | ويصحُّ سلَمُهُ بعِوَضٍ في ذمَّتهِ |
Conclusion
Adhering to the principles of lawful disposal and determinacy in transactions helps buyers and sellers avoid invalid sales and impermissible elements like gharar (uncertainty) that is impermissible in the Shariah law. This article highlights the importance of clear identification of items and proper representation. Lastly, these principles ensure that transactions are valid, promote fairness and transparency, and are Shariah-compliant in trade.
Written by Maryam Binte Aziz for notes on Umdatus Salik episode 184 – ‘The Things Exchanged in a Transaction Part II: Lawful Disposal Over the Property, Being Determinately Known ‘.
Umdatus Salik #1 : The Concept of Sale in Islam & The Spoken Offer and Acceptance
