The Marketing Contract Juristic Categorization and Ruling

A Refereed Study
The Marketing1 Contract

Juristic Categorization and
Ruling
Dr. Abdullaah ibn Naasir asSulamee2
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
I. Linguistic and Technical Definitions

of the Arabic Word 'Aqd (Contract)
A. Linguistic Definition of the Arabic Word 'Aqd
The word 'aqd is a noun (plural: 'uqood) which carries numerous
meanings including the following:
 Tying tightly, such as tying a rope.
 Confirmation and attestation; in the context of a covenant or an
oath, for instance, it means to confirm it.
 'Aqd also carries the meaning of covenant and fulfilment; in this
context, it denotes 'entering into a covenant, binding oneself'.3
By considering these linguistic meanings of the word 'aqd, it
becomes clear that it is used for corporeal matters, such as 'tying a rope'
as well as for legal matters, such as 'aqd al-bay' (sale contract) and aqd an-
nikaah ' (marriage contract) in the sense of concluding them. 4
B. Technical Meaning of the Arabic Word 'Aqd
Technically, the noun 'aqd is used in two senses:
1. General Sense: In this sense, it refers to any commitment one
takes upon oneself to honour in return for another commitment or
agreement, such as a sale or marriage; or in return for nothing, such as
an oath; for a person who takes an oath has in actual fact taken it upon
himself to honour a commitment to do something or not to do it.5
2. Specific Sense: Muslim Jurists have furnished different
definitions of the word 'aqd including the following:
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-
Qurtubee's Al-Jaami' Li Ahkaam al-Qur'aan, 6/23, al-Kutub al-'Ilmiyyah Publishers.

5See Ibn Taymiyyah's Qaa'idat al-'Uqood, p. 95, in which he mentions that Imaam Ahmad
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
 A statement one of the two contracting parties makes to the other

contracting party whose effect becomes legally binding. 6
 The combination of one of the two contracting parties' offer and
the other party's acceptance regarding the purpose and content of the
contract, or the statement made by someone who undertakes to
represent them.7
 The correlation between the offer and acceptance which become
legally binding, such as a sale contract and a marriage contract. 8
Combined together, these definitions state that the meaning of the
word 'aqd (contract) is an agreement which binds the contracting parties
depending on whatever statements they have made or conditions they
have stipulated whose effect becomes legally binding. This is the specific
meaning intended in the present paper. Allah knows best.
II. Linguistic and Technical Definitions

of the Arabic Word Tasreef
A. Linguistic Definition of the Arabic Word Tasreef
The three letters s, r and f of which the Arabic word sarafa is
composed carry a number of meanings including the following:
 'Working out, managing and contriving'. When used in the
context of transactions, it refers to spending and circulating money. We
say that a man sarafa li'iyyaalihi (for his family) to mean he is doing all he
can to support his family.
 'Transferring something from one place to another'. When used
with reference to the winds, it means they move in a current from one
place to another. The Arabic word sarraaf (money-changer, whose
business is to change money of one country for that of another) is a
derivative of this word.
6 Anees al-Fuqahaa', p. 203.

7 See Fath al-Qadeer, 2/341; Haashiyat Ibn 'Aabideen, 2/258; Haashiyat ad-Dasooqee, 3/5; and
Haashiyat al-Qaasim 'Alaa Tuhfat al-Muhtaaj, 4/214.
8 Az-Zarkashee, Ad-Durr al-Manthoor, 22/397. It is recommended to refer to Nadhraiyyat
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)
 'To turn away or aside'. The Qur'anic words "Thumm-an-sarafoo"

(…then they turned away) (Surat at-Tawbah, 9:127), in which the word
sarafa is used in the plural form to refer to the hypocrites, means they
turned away from the place where they heard the Qur'an being recited. 9
B. Technical Definition of the Arabic Word Tasreef
As far as the technical definition of the term tasreef is concerned, I
have not come across any such definition by jurists, past and present, or
even by any researchers. However, the linguistic meaning in generally
denotes almost the same thing as the technical meaning. I will, however,
provide a comprehensive definition of this type of contract in such a
manner as to include all the forms of tasreef to be mentioned later on.
The definition is: Tasreef is a type of contract by virtue of which one of
the two contracting parties takes it upon himself, with regard to the
other party, to complete the transaction or otherwise, make it
conditional on selling the object of the contract (ma'qood' alayhi) or
authorise the other party to sell the item of sale or entrust him to push
the sale of the merchandise in return for a certain amount of money.
The statement "One of the two contracting parties takes it upon
himself, with regard to the other party" implies that the buyer may state
as a condition that if he fails to sell the merchandise he will return it; it
also implies that the seller may state as a condition that the buyer buys
the merchandise, and if he does not manage to push its sale he can
return it. This also includes the possibility of stipulating a condition of
selling the merchandise in the contract or an absolute optional
conditional (shart al-khiyaar).10
The statement "…make it conditional" makes it clear that the
absolute agreement to promote and sell the merchandise is included.
9 See Lisaan al-'Arab, 9/189-192; Al-Mu'jam al-Waseet, p. 513; Al-Qaamoos al-Muheet, p.

11069; and Asaas al-Balaaghah, p. 353.
10 Shart al-khiyaar is involved where the executor of a contract makes an explicit mention
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 statement "or entrust him…" includes the fourth type of

contract, namely ju'aalah 11 contract. An example of this is the
merchandise owner's saying, "Sell the merchandise for one hundred
[dollars, for instance], whatever extra profit you make is yours."
Part I: Juristic Categorisation

of the Tasreef Contract
By juristic categorisation of the tasreef contract is meant its position
with regard to the other types of contracts: Is it a new type of the other
well-known contracts, or is it included in the other contracts mentioned
by the early jurists (may Allah have mercy on them)?
It is worth mentioning here, however, that some of the well-known
contracts encompass numerous forms which people have introduced in
their dealings with others. In fact, Muslim jurists have concerned
themselves with such forms that some of these jurists have coined new
terms for them in order to detail Islamic rulings regarding them and to
distinguish them from the known contracts due to some conditions and
qualities which are more often than not related to them. Perhaps the
Hanafite school of jurisprudence is the best known in introducing new
contracts and distinguishing them from other similar types of common
contracts. Some of the contracts they have introduced include the
istisnaa 12 ' and the istijraar13 contracts. In fact, it is acceptable to give
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
something that is to be manufactured which the seller undertakes to provide, af ter

manufacturing, some materials of his own, according to designated specifications
against a determined price. (Translator's Note) See also Tuhfat al-Fuqahaa', 2/538.
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)
names to certain dealings and forms of transactions as long as they are

governed by the same category or special designation with the aim of
distinguishing them form other dealings and forms of transactions. Such
new names, however, must not be used as a criterion to judge them as
being lawful or unlawful given that they are entirely new forms of
transactions of which past jurist made no mention whatsoever and that
transactions are essentially lawful. As a matter of fact, some of the
names given to certain new contracts by no means provide a general
ruling. Therefore, it is imperative to study each case separately even
though the ruling regarding some of them varies in terms of their being
permissible or otherwise.
Perhaps the tasreef contract, whose ruling the present paper will
undertake to clarify, is one of such contracts. A cursory look at the forms
of transactions under the tasreef contracts will reveal that they are all
limited to the following forms:
I. Sale with the 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. To illustrate, one of the two contracting parties sells a house
to the other party on condition that the seller will reside in it for a
month; to buy firewood on condition the seller delivers it to the buyer's
residence; or to buy a piece of cloth on condition the seller makes a shirt
from it.14 The restrictive condition is known as "the condition stipulated
in the contract". 15
Muslim jurists, past and present, have provided numerous
definitions of this restrictive condition, including the following:
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
1. Some Hanafite jurists define it as "stipulating a condition that was

non-existent in a matter (i.e. contract) which already exists".16
Two remarks, however, can be made regarding this definition,
namely,
 It is too general in that the intended meaning is not clear
 It does not include all the components of the defined term, for
the matter to be stipulated may already exist at the time of concluding
the contract; an example of which is stipulating that the object of
contract should have a certain characteristic, and the like. 17
2. Some Hanbalite jurists have defined it as "the obligation one of
the two contracting parties' imposes on the other party as long a it is
bound to yield a certain benefit (manfa'ah)" 18 , and they have qualified
such a benefit as a "legally valid objective".19
Some scholars, however, have objected to this definition, stating that
it is not comprehensive in that it does not mention whether such a
benefit could be of any avail to other than the two contracting parties or
whether it does not have any benefit whatsoever. 20
I believe, however, that such an objection is not strong enough, for
the condition one or both of the contracting parties stipulate does not
preclude the possibility of there being a certain benefit; furthermore, this
benefit need not be tangible, and that is why they have qualified the
term manfa'ah (benefit) as a "legally valid objective". However, it would
be better if the word "benefit" were used instead.
A further objection to this definition states that it does not include
the condition required by the contract and which confirms the original
commitment; an example of such a condition is to stipulate that if
someone buys a garment he should wear it, or to stipulate that the
collateral tendered should be sold for the debt owed.21
16 See Al-Hamawee, Ghamz 'Uyoon al-Basaa'ir, 4/41.

17 See 'Abdullaah al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 24; and
Mustafa az-Zarqaa, Al-Madkhal al-Fiqhee al-'Aamm, 1/506.
18 See Muntahaa al-Iraadaat, p. 286; Al-Buhootee, Kashshaaf al-Qinaa', 3/188; Ibn Qaasim,
Ar-Rawdh al-Murbi', 4/392; and Ibn Muflih, Al-Mubdi', 4/51.

19 See Haashiyat ar-Rawdh al-Murbi', 4/392.
20 Al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 24.
21 See Ash-Shart al-Jazaa'ee Wa Atharuhu Fee al-'Uqood al-Mu'aasirah, p.80.
46 Al-Adl (38)
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
II. Sale Contract made Contingent on a Future Event

Regarding this form of transaction, Muslim jurists use the expression
"ta'leeq al-bay' 'alaa shart'23 (making sale contingent on a future event). In
fact, it is one of the forms of acceptance in the sale contract and is the
opposite of the so-called 'aqd munjaz 24 (completed contract).
Linguistically, the infinitive of the Arabic word ta'leeq (making
something contingent on something else) is 'allaqa, which means 'hang,
suspend and dangle', all of which denote hanging something on
something higher25 ; the derivative word mi'laaq refers to the hook with
which meat and similar things are suspended. The word mu'allaqah
refers to a woman who is "left hanging in the air"; that is, she is still
married but her husband abandons her in such a way that she is
considered to be neither married, nor divorced. 26
Technically, some Hanafite jurists have defined it as "attaching the
occurrence of something on the occurrence of something else." 27
The Hanbalite jurist al-Hajjaawee, however, clearly and simply
defines it as "making something which has taken place on something
which may or may not take place." 28
The phrase "something which has taken place" is additional
information in the definition which is not mentioned in the definition
provided by the Hanafite jurists. This statement includes contingency on
something which has taken place; therefore, even though the thematic
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
restrictions and become binding as soon as it is concluded. In fact, such a contract

incorporates the original form found in all contracts. The offer in such a contract will
be something like "I'll sell you my house for such-and-such an amount." See 'Alee al-
Khafeef, Al-Mu'aamalaat ash-Shar'iyyah, pp. 220-221; and Muhammad abu Zahrah, Al-
Milkiyyah Wa Nadhariyat al-'Aqd, p. 256.
25 See Mu'jam Maqaayees al-Lughah, 4/125.
26 See Lisaan al-'Arab, 10/261-264; Al-Matrizee, Al-Mughrab, p. 326; and Al-Misbaah al-
Muneer, p. 425.
27 See Ibn Nujaym, Al-Ashbaah Wan-Nadhaa'ir, p. 436; Sharh at-Talweeh 'Alaa at-Tawdheeh,
1/120; and Durar al-Hukkaam Sharh Gharar al-Ahkaam, 2/376.

28 See Al-Iqnaa' Ma'a Sharh Kash-Shaaf al-Qinaa', 5/284.
48 Al-Adl (38)
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
29 See Al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 12.

30 The Arabic conditional particles include, among other things, in, idhaa and lau which
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.
31See Fath al-Qadeer, 3/442-449; Al-Fataawaa al-Hindiyyah, 1/420; and Majma' al-Anhur,
1/417.
Al-Adl (38) 49
something else). Following are the principal differences between these

two forms:
 Unlike the stipulation of a condition in the sale contract which
requires the use of such phrases as ''alaa an' or 'bisharti an', which both
mean 'on condition that', making a sale transaction contingent upon a
certain condition requires the use of a conditional particle, such as 'in'
(if) and any of the other conditional particles.
 The sale that is made contingent upon a certain condition does
not become effective prior to the fulfilment of the condition upon which
it depends. When 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 actually makes the
sale contract with the seller contingent upon the fulfilment of the future
condition, namely the merchandising and selling of goods. Conversely,
the condition stipulated in the sale contract is there and its rulings and
obligations under the contract become binding as soon as the mode of
expression in the contract is issued.32
 The act of making the sale contract contingent upon a future
condition becomes rather inconsequential regarding the contract and its
future rulings. To put it bluntly, as soon as the condition upon which the
contract becomes contingent is met, the contract will be regarded as
though there has never been a condition binding it and all its rulings
and obligations under the contract will become effective.
As for the condition stipulated in the contract, it actually affects the
rulings and obligations under the contract and will have a twofold
function: (1) Either to restrict the rulings and obligations under the
contract after the contracting parties have had the freedom to dispose of
the tangible asset of the transaction (mabee'), such as the seller's
stipulation that he would reside in the house he has sold for a month or
to ride the riding animal he has sold to a certain place; or (2) to confirm
the requirements of the contract, such as meeting the requirements of
the object of the contract; an example of which is when the seller
32 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.
50 Al-Adl (38)
stipulates, in the case of deferred payment, the existence of a certain

pledge or collateral (rahn)33 or guarantor (kafeel)34 or the addition of
certain matters which are not required by the contract, such as buying
firewood on condition the seller breaks it to pieces.35
III. Concluding a Sale Contract with the Option of
Stipulation36
To give an example of this form of transaction, the contracting
parties conclude a sale contract on condition that the buyer has the
option to execute it or rescind it. Some buyers fix a specific period of
time for this option, such as one or more weeks, to merchandise and sell
the goods; otherwise, they will have to return them to the seller.
Some other buyers fix an unknown period of time by saying, for

instance, "I will purchase the goods and I have the option to return the
tangible asset of the transaction (mabee') or part of it at the end of the
season."
Some others do not specify any period of time whatsoever by saying,
for example, "I will buy the goods on condition that I have the option to
return the tangible asset of the transaction or part of it."
33 This 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
possible for the creditor to recover the debt or some portion of the goods or property.
(Translator's Note)
34 The 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)
35 See Ash-Shaadhlee, Nadhariyat ash-Shart, pp. 55-56.
36 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.
Al-Adl (38) 51
IV. Authorising Someone to Sell the Goods at a specific Price

and Giving the Broker the Amount Exceeding the Fixed Price
An example of this is the common practice of authorising store
owners to sell a certain commodity for, say, SR 100 and to keep any extra
profit they make.37 This from of transaction is next only to the first form
in terms of practice, and it is practised even more by authorized
trademark agents in certain parts of the world (such as the authorized
trademark agents of certain rug stores), in which case trademark owners
desire to have their products marketed and thus they request some store
owners to sell their products in this manner.
Part II: The Islamic Ruling

Regarding the Tasreef Contract
Bearing in mind the foregoing discussion regarding the different
forms of the tasreef contract, it becomes clear that such a contract falls
under two types of contracts, namely the sale contract and the ju'aalah
contract38 , as will be made clear in the fourth section of the present part.
This does not mean, however, that the tasreef contract is a combination of
both contracts or that they both have to be concluded at once for the
tasreef contract to be called as such. It is worth mentioning here, though,
that this contract, along with all its types, has assumed a new name
which has become common amongst people and which was not known
to past jurists with such an appellation. Therefore, it is not appropriate
to apply a general ruling to it without taking into account the
comprehensive fundamentals as well as the fundamental criteria
deduced from the legal texts as to the form of transactions which fall
under such an appellation; for the fundamental principle to be
considered regarding contracts are the intents not the forms and
37 See Al-Ghurar al-Bahiyyah Fee Sharh al-Bahjah al-Wardiyyah, 3/311.

38Ju’aalah (also ji'aalah, ‘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)
52 Al-Adl (38)
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
ash-Shaytaan, 2/114; and Tabyeen al-Haqaa'iq, 5/1.

41 See Al-Kaasaanee, Badaa'i' as-Sanaa'i', 5/165; As-Sarakhsee, Al-Mabsoot, 13/15Az-
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 Maalikites do maintain, however, that this applies as long as the

condition is strictly adhered to; if the condition is waived, the contract is
still valid as long as the tangible asset of the contract is intact; if it
perishes for some reason the contract then becomes null and void. The
criterion they adopt in this regard is that any condition that contradicts
the objective and the requirement of the contract is without doubt
invalid and thus renders the contract null and void as long as the buyer
still adheres to the condition.
The topic under study falls under this type of transaction, for the
contract requirement according to them is that the asset of the
transaction (mabee') belongs to the buyer and assumes full responsibility
in this respect whether it sells well or not. 42
usurious transactions, (2) conditions which lead to risk-taking, uncertainty, deceptive

practices and thus disputes, (3) conditions which are not required by the contract, nor
constitute the common practice amongst people ('urf), nor is approved by the Islamic
Law (Sharee'ah), (4) conditions which constitute a certain benefit to the object of the
contract (ma'qood' alayhi) if it is a human being, or to one of the contracting parties if he
so deserves such a benefit. An example of the conditions which lead to risk -taking,
uncertainty and deceptive practices is to impose the condition that the cow the
purchaser buys must produce a certain amount of milk; an example of the condition
which constitutes a certain benefit to one the contracting parties is when someone
buys a piece of cloth and stipulates the condition that the seller makes a shirt from it;
and yet another example of the condition which constitutes a certain benefit to the
object of the contract is when someone sells a slave-girl on condition that the buyer
does not sell her.
2. Invalid conditions which do not render the contract null and void: These include
conditions which constitute a certain benefit to the object of the contract ( ma'qood
'alayhi) if it is not a human being, such as a riding animal or car in which case one sells
it on condition the buyer does not use it; conditions which constitute a certain benefit
to someone who is not a party to the contract, such as selling one's house and
imposing the condition that the buyer must lend the seller's next-door neighbour SR
10,000; and conditions which are stipulated by one of the two contracting parties and
which constitute neither a benefit nor any type of harm to him, such as selling a piece
of cloth on condition that the buyer alone wears it or selling food and stipulating the
condition that only the buyer eats it. In addition to the above-mentioned sources, see
also Ash-Shaadhlee, Nadharaiyat al-'Aqd, pp. 188-189 and 204-208; Sha'baan, Nadhariyat
ash-Shuroot al-Muqtarina Bil-'Aqd, pp. 114-116; and Dr. Muhammad 'Uthmaan Shabeer,
Al-Madkhal Fee Fiqh al-Mu'aamalaat al-Maaliyah, p. 262.
42 See Al-Mawwaaq, At-Taaj Wal-Ikleel Li Mukhtasar Khaleel, 6/242; Haashiyat ad-Dasooqee,
3/65-66; Sharh al-Kharshee 'Alaa Mukhtasar Khaleel, 5/81; Al-Hattaab, Tahreer al-Kalaam
54 Al-Adl (38)
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,
2/31; An-Nawawee, Rawdhat at-Taalibeen, 3.400, Haashiyat al-Jamal, 3/74-75; and

Haashiyat al-Bayjarmee 'Alaa al-Manhaj, 2/210; Ash-Shaadhlee, Nadhariyat ash-Shart, pp.
259-270; Ash-Sharbeenee, Mughnee al-Muhtaaj, 2/34; and al-hakamee, Ash-Shuroot al-
Ja'liyyah, p. 35.
44 See Al-Furoo', 4/64; and Al-Insaaf, 4/351. The Hanbalites make a difference between
two types of invalid conditions, namely:

1. Invalid conditions which render the contract null and void: These include contracts
leading to having two contracts in one single contract with two different types if 'wad
(equal counter value or compensation), such as a sale and loan contract and a sale and
sarf (exchange money for money) contract. They also include having two conditions in
the same contract and the condition of time stipulations (ta'qeet) which apply to
marriage contracts, such as the temporary marriage (zawaaj al-mut'ah) and the
marriage contract which is not concluded with the true intention of getting married
but for the sole purpose of making a woman lawful for her first husband after she has
been divorced for the third time (zawaaj al-muhallil).
2. Invalid conditions which do not render the contract null and void: These include,
among other things, those conditions which contradict the contract requirements such
as when the seller stipulates that the buyer does not give the asset of the transaction
(mabee') away, when the buyer stipulates that he will not bear any losses whatsoever
or when he imposes the condition that he will return the goods he has purchased to
the seller in the event that they do not sell well. They also include conditions which
involve some kind of ignorance or indefiniteness in the contract which may lead to
risk-taking and uncertainty. An example of this condition is when a buyer stipulates
an unknown option to annul a contract (khiyaar) and an unknown end date of the
contract (ajal). These conditions are invalid but they do not render the contract null
and void as they do not invalidate its purpose.
45 The Daahirees are followers of the Dhaahiree School of Jurisprudence whose followers
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
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
46 Ibn Abee Shaybah, Al-Musannaf, 11/248.

47 See An-Nawawee, Al-Majmoo', 9/452
48 See An-Nawawee, Al-Majmoo', 9/452; and Al-Mughnee, 6/166.
49 See An-Nawawee, Al-Majmoo', 9/452; and Al-Mughnee, 6/166.
50 See Al-'Umraanee, Al-Bayaan, 5/132; and An-Nawawee, Al-Majmoo', 9/453-454
51 See Al-Mughnee, 6/132Abu Ya'laa, Al-Masaa'il al-Fiqhiyyah, 1/349-350; al-Fatoohee,
Ma'oonat Ulee an-Nuhaa Sharh al-Muntahaa, 4/63-64; and Al-Insaaf, 4/350-351.

52 See Ibn Abee Shaybah, Al-Musannaf, 11/327; and Sa'eed ibn mansoor, As-Sunan, 1/216.
54 Ibid., 11/250.
55Ibid., 11/327.
56 Ibid., 11/328.
57 See Majmoo' al-Fataawaa, 29/126-127 and 132-133; and Al-Qawaa'id an-Nooraaniyah, p.
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)
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.
Al-Adl (38) 57
evidence from scholars' reports or from analogical reasoning; however,

he does not see any reason why the evidence furnished by the former
(i.e. that of those who consider the condition invalid) should render such
a condition invalid; besides, this cannot be disproved by the claim that
it is a condition which contravenes the contract requirements or that
there is no legal text to support it…" 62
In refutation of the view whose proponents maintain that the
conditions stipulated by Muslims remain generally invalid until a proof
stating otherwise is furnished, Ibn al-Qayyim writes, "The majority of
scholars oppose this view. In fact, contracts and conditions are
essentially valid with the exception of those which the Legislator has
declared impermissible or prohibited. The correct view in this regard is
that to rule that they are invalid is a ruling which amounts to
considering them prohibited and sinful practices; it is well-known that
nothing must be declared unlawful except that which Allah and His
Messenger declared as such, and that nothing can be declared sinful
except that which Allah and His messenger declared as such…" 63
This statement also constitutes the view held by the Hanafites if we
say that the restrictive condition in the tasreef contract renders the
invalid conditions valid64 . Such a restrictive condition, as we have
mentioned earlier on, states that the tangible asset of the transaction
(mabee') will be returned to the seller if it is not merchandised or does
not sell well based on the principle that permits transactions and
prevailing customs ('urf) and which include invalid conditions such as
stipulating a contract within another contract, or conditions which
contravene the contract requirements, but which constitute a certain
benefit to one of the contracting parties. In fact, the condition in the
tasreef contract has become a prevailing custom ('urf) and hardly no one
disapproves of stipulating such a condition.
Al-Marghinani (may Allah have mercy upon him) writes in this
respect, "Any condition which is not required by the contract and which
constitutes some benefit to one of the contracting parties or to the object
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)
of the contract (ma'qood 'alayhi) if it is a human being certainly renders

the contract null and void (such as when the seller stipulates that the
buyer does not sell a slave who constitutes the tangible asset of the
transaction (mabee'), as this entails an excess stipulated as an obligatory
condition on the buyer without any return, or because he may be the
cause of a dispute, in which case the objective of the contract is not
realised) unless such a condition constitutes a prevailing custom ('urf);
for the prevailing custom is given precedence over analogical
reasoning." 65
These jurists draw a parallel here between the condition that is
stipulated in accordance with the prevailing customs ('urf) and the valid
condition which is legally established. 66
Ibn 'Aabiden (may Allah have mercy on him) provides examples in
this respect, thus, "An example of this is the selling of things kept in
containers, such as oil. The buyer stipulates that the seller must weigh
both the oil and the container and then deduct the weight of the
container by specifying a known number of ratl67 [which constitutes a
prevailing custom]. In fact, such a condition is invalid because the
contract requirement dictates that the container's actual weight is to be
deducted; however, because this practice has become a prevailing
custom ('urf) amongst many people in most cities, it is absolutely
permissible. This condition is acceptable as there are similar cases
mentioned in juristic books which state, among other things, that selling
shoes on condition that the seller provides the buyer with shoes in a
completely identical manner to his shoes with laces. The author of Al-
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,
according to the standard of Baghdad. (Translator's Note)
Al-Adl (38) 59
Bahr ar-Raa'iq68 writes, "Analogical reasoning determines that such [a

condition] is invalid as it constitutes a certain benefit to the buyer while
the contract does not require it; however, what is mentioned in juristic
books approve of such practice. In fact, going against common practices
clearly causes a great deal of difficulty as opposed to stipulating that the
cloth seller should make a certain garment from it when it is the
common practice. Adding nails to the clogs' soles is similar to adding
laces to shoes, as is mentioned in Fath al-Qadeer69 . The [author of] Al-
Faawaa al-Bazzaziyah mentions that it is permissible to buy worn out
clothes or shoes and to stipulate that the seller patches the torn clothes
and mends the worn out shoes…Here we find that the condition which
is stipulated in accordance with the prevailing customs ('urf) is similar
to the valid condition which is legally established." 70
Evidence furnished in Support of these Opinions
1. Evidence advanced by those who maintain that both the
contract and the condition are null and void
First Evidence
'Aa'ishah (may Allah be pleased with her) said, "Bareerah came to
me and said, 'My people (i.e. masters) have written the contract for my
emancipation for nine awaaq71 [of gold] to be paid in yearly instalments
—one uqiyyah per year, so help me.'" 'Aa'ishah said [to her], "If your
masters agree, I will pay them the whole sum provided the waalaa'72 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
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
different countries. (Translator's Note)

72 Walaa' (Literally 'proximity, kin, friendship') is a peculiar relationship voluntarily
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)
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
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
of emancipation for a certain sum) and Fath al-Baaree, 5/443.

78 See Ibn Hajar, Fath al-Baaree, 5/235.
62 Al-Adl (38)
contravenes Allah's Book and His conditions…In fact, the stipulated

which contravenes Allah's Book is undoubtedly invalid, for the truth is
in the judgment of Allah and His Book. However, if there is no
categorical proof in the Qur'an as to the permissibility of the same
stipulation and stipulated and remains silent on the issue, then we
cannot say that they contravene Allah's Book and conditions. Hence, the
statement "Allah's rules are the most valid and Allah's conditions are the
most solid" is not appropriate to cite as proof in this regard. 79
In fact, the claim that the statement 'any condition which is not in
Allah's Book' includes general and specific conditions is not true, for
Allah's Book clearly mentions that conditions are generally permissible
and urges the believers to honour them, as evidenced by the verses, "O
you who believe! Fulfil [all] obligations" 80 and "fulfil the Covenant of
Allah"81 , in addition to other verses which generally point to the
obligation of honouring one's agreements and solemnly promising to
fulfil them.82
b. Proponents of this view also maintain that the Prophet's statement
'any condition which is not in Allah's Book' means any condition w hich
is not in the Qur'an or the Prophetic reports (hadeeth), nor is supported
by the unanimous agreement of Muslim scholars or analogical
reasoning, because all these are included in the Book of Allah and His
judgments.83 Imaam An-Nawawee writes about this hadeeth, "It is quite
explicit as to the invalidity of any condition which has no basis in the
Book of Allah the Almighty." 84
The last point in the previous response was cited as a refutation of
this argument.
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
the Prophetic reports mentioned in Saheeh Muslim.
Al-Adl (38) 63
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
asset he has bought for a certain period of time.

88 Reported by Al-Bukhaaree on the authority of 'Abdur-Rahmaan ibn Abu Bakrah from
his father, Kitaab al-Fitan, hadeeth no. 6551.

89 Surat at-Tahreem, 66:1.
90 See Ibn Hazm, Al-Muhallaa, 7/324.
64 Al-Adl (38)
then such a view is not acceptable; furthermore, no cogent evidence

which prevents such an act has been furnished in this respect.
The textual evidence "Your blood (i.e. lives), your property, your
honour and your skins (i.e. bodies) are sacred to one another" which
they quote in support of the impermissibility of the conditions required
by the contract is to be carefully reconsidered. For the conditions
stipulated by one or both contracting parties actually constitute a
known, lawful benefit which does not contravene the contract
requirement. Indeed, the stipulation of such a condition with the
contracting parties' consent and without any coercion whatsoever is by
no means unlawful, because they both accept it of their own free will. In
addition, the Prophet (may Allah's peace and blessings be upon him)
said in this regard, "It is forbidden to take anything from a Muslim's
wealth unless he consents to it of his own free will." 91
b. As for his assertion that it is not permissible to prevent the buyer
from something (as in the case where the seller benefits from the sold
asset before he delivers it to the buyer) as evidenced by the verse, "O
Prophet! Why do you hold forbidden that which Allah has made lawful
to you…" 92 , this can be refuted as follows:
 There is nothing here that indicates permissibility or
impermissibility. What actually happens here is that the sold asset is
kept from the buyer after the conclusion of the contract for a while. In
fact, the Sunnah approves such a practice, and this was the practice of
the prophet's companions as well as that of the leading scholars who
followed them. This point will be made much clearer later on.
 The purpose of stipulating conditions is to obligate someone to
do something which was not stated as a necessary act in the contract as
long as it is not unlawful. Thus, a valid condition renders a non-
obligatory act required, for conditions make it incumbent on the
contracting parties to do things which were not originally stated to be
otherwise. Similarly, they make impermissible allowable; they also make
those acts which were not originally stated to be forbidden lawful. By
the same token, if a certain characteristic is stipulated to exist in the
91 Reported by Al-Bayhaqee, As-Sunan al-Kubraa, hadeeth no. 11325.

92 Surat at-Tahreem, 66:1.
Al-Adl (38) 65
tangible asset of the transaction (mabee'), or a certain pawning (rahn)93 is

stipulated, or if a woman stipulates an increase in her "dower of
equivalence" (mahr al-mithl)94 , all these conditions become binding,
permissible, or forbidden depending of the condition stipulated.95
 Obliging oneself to honour a certain agreement or condition by
no means amount to changing what Allah has legislated unless one has
obliged oneself to do something which the Sharee'ah declares forbidden
by, for instance, rendering lawful what the Sharee'ah considers unlawful
or vice versa. The Qur'an says in this connection, "O you who believe!
Fulfil [all] obligations. Lawful to you [for food] are all beasts of cattle
with exceptions named; but animals of the chase are forbidden while
you are in the sacred Precincts or in the state of pilgrimage. For Allah
commands according to His Will and Plan." 96 These conditions do not
make lawful things prohibited, nor do they make forbidden things
permissible.97
Third Evidence
Two Prophetic traditions are cited in this respect:
1. ' Amr ibn Shu'ayb narrated from his father, from his grandfather,
that the Messenger of Allah (may Allah bless him and grant him peace)
forbade any sale [contract] concluded with a condition." 98
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)
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.
Al-Adl (38) 67
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
102 See Ma'aanee al-Aathaar, 4/47.

103 An example of this is when the buyer stipulates that the seller must carry the item he
has purchased from him to his flat which is located in a certain area. A dispute may
arise when the buyer tells the seller that he has meant he must carry it to the doorstep
located on the fifth floor, while the seller understands his statement to mean simply
where he lives, without expecting to take the sold item up the stairs as there is no lift
in the building where the buyer lives. (Translator's Note)
104 See Sharh al-Bahjah, 2/427; and Al-Majmoo' Sharh al-Muhadh-dhab, 9/466.
105 Matrook (abandoned) refers to a hadeeth which is reported by a transmitter who is
suspected of falsehood or is openly wicked in speech and action or is guilty of

carelessness or frequent wrong notions. (Translator's Note)
106 See Ad-Dahabee, Meezaan al-I'tidaal Fee Naqdi ar-Rijaal, 4/64; and Ad-Dahabee, Al-
Mughnee Fee Adh-Dhu'afaa', 1/332.
68 Al-Adl (38)
 Muhammad ibn Sulaymaan adh-Dhahlee, who is also in the

chain of narrators, is classified [by hadeeth experts] as 'majhool'
(unknown) and does not have a biography to detail his identity. Imaam
Ahmad classified him as 'munkar'107 and Imaam An-Nawawee
categorised him as 'ghareeb'108 .109 Ibn Taymiyyah (may Allah have
mercy on him) said about him, "Some jurists have mentioned him in
their books, but he is not mentioned in hadeeth books. Imaam Ahmad as
well as other scholars have also classified him as 'munkar' (rejected,
denounced) and have mentioned that he is not known and that his
narrations contradict authentic Prophetic reports." 110
The second hadeeth, however, is authentic 111 , and the Prophet's
statement "There should be no two conditions in one sale [transaction]
clearly opposes their claim that one condition is not permissible in a
single sale transaction. Ibn Qudaamah (may Allah have mercy on him)
writes, "When someone said to Abu 'Abdullah 112 , 'These people view the
stipulation of a condition in the sale contract to be disliked (makrooh)' he
shook his hands [in disapproval] and said, 'There is no harm in
stipulating one condition in a sale transaction, for the Prophet (may
Allah's peace and blessings be upon him) only forbade stipulating two
conditions in a single sale transaction.' In fact, the evidence contained in
the hadeeth narrated by Jaabir (may Allah be pleased with him) who said
that the Prophet (may Allah's peace and blessings be upon him) had
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
the chain of transmitters. (Translators Note)

109 See Al-Majmoo' Sharh al-Muhadh-dhab, 9/453.
110 See Majmoo' al-Fataawaa, 29/132.
111 It was classifies as 'saheeh' (authentic) by Al-Haakim in Al-Mustadrak, 2/17, Ibn
Taymiyyah in Al-Fataawaa al-Kubraa, 6/177 and Ibn al-Qayyim in I'laam al-

Muwwaqqi'een, 3/119.
112 As a title of respect, Arabs always name someone as 'the father or mother of ' a certain
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)
Al-Adl (38) 69
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)
The most accurate view regarding the interpretation of the

conditions mentioned in the hadeeth (Allah knows best) is the one whose
proponents argue that the meaning of two conditions is explained by the
hadeeth which prohibits the conclusion of two contracts in one single
contract, which is generally termed 'eenah.117 This was the view adopted
and favoured by Ibn Taymiyyah 118 and his disciple Ibn al-Qayyim119
(may Allah have mercy on both of them), and the reason behind such
prohibition is that it involves a compound of an interest (ribaa)-based
stratagem.
Ibn al-Qayyim (may Allah have mercy on him) writes in this regard,
"This, in fact, is what is called 'two conditions in one sale [transaction];
for the word condition (Arabic shart) is used to refer to the contract itself
as both contracting parties have entered into an agreement on condition
that they both honour its terms. Honouring the terms of the contract is
the so-called mashroot (i.e. that which is stipulated); in fact, the shart
(stipulation) is often used to refer to that which is stipulated (mashroot).
Examples [in Arabic} include, among other things, dharb (beating) is
used to refer to the madhroob (the one who is beaten), halq (shaving) is
used to refer to the mahlooq (the thing that is shaven) and naskh
(abrogation) is used to refer to the mansookh (the thing that is abrogated).
Thus, two conditions are rather similar to two transactions. By the same
token, two conditions in a sale [transaction] refer to two transactions in
one transaction…" 120
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.
Al-Adl (38) 71
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
al-Manbajee, Al-Lubaab Fee al-jam' Bayna as-Sunnati Wal-Kitaab, revised by

MuhammadFadhl Muraad, 22/501; and Al-Baajee al-Maalikee, Al-Muntaqaa, 4/211.
72 Al-Adl (38)
The following responses have been made in refutation of this

evidence:
a. This report is categorised by hadeeth experts as 'weak' for the
following defects:
 Its chain of transmitters (isnaad) includes of 'Abdur-Rahmaan ibn
'Abdullah ibn 'Utbah ibn Mas'ood whose narrations are classified as
'good' (hasan) but his memory was muddled up towards the end of his
life. The earlier scholars reported sound reports from him, but the
narrations reported from him by the later ones are not classified as
'authentic' (saheeh)." 125
 The chain of transmitters also includes Muhammad ibn 'Amr ibn
al-Haarith whom only Ibn Hibbaan, as was his custom, documented and
categorised as 'majhool' (unknown). 126
 There is a missing link in the chain of transmitters of this report,
for Muhammad ibn 'Amr ibn al-Haarith did not hear it from 'Umar ibn
al-Khattaab (may Allah be pleased with him); in fact, he never heard
anything from the Leader of the Faithful (i.e. 'Umar ibn al-Khattaab)." 127
b. The report that was authentically attributed to 'Umar ibn al-
Khattaab has actually a different wording. Besides the categorisation of
Muhammad ibn 'Amr ibn al-Haarith by hadeeth experts as 'majhool'
(unknown), hadeeth narrators narrated a similar hadeeth but with a
different wording. In fact, the narration provided by the well-known
reliable hadeeth transmitters is different from this one. What actually
happened was that 'Abdur-Rahmaan ibn 'Abdullaah ibn 'Utbah ibn
Mas'ood made a mistake and only reported its meaning. This narration
was also reported, amongst others, by Shu'bah ibn al-Hajjaaj and
Sufyaan ath-Thawree on the authority of Khaalid ibn Salamah who said,
"I heard Muhammad ibn 'Amr ibn al-Haarith saying that Zaynab,
'Abdullaah ibn Mas'ood's wife, sold her slave-girl to 'Abdullaah [ibn
Mas'ood] and stipulated the condition that she would serve her. When
'Umar was informed [of this incident], he said [to' Abdullaah], 'Don't
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.
Al-Adl (38) 73
purchase her as long as there is a stipulation [attached to the

agreement].'" 128 This is the wording narrated by Ath-Thawree on the
authority of Khaalid ibn Salamah. Shu'bah's narration reads, "Let him
not buy her as long as someone has stipulated a condition [in the sale
agreement]." 129
In fact, this wording is considered the most authentic, as it is
supported by another narration reported by Imaam Maalik in his
Muwwatta' on the authority of Az-Zuhree from 'Ubaydullaah ibn
'Abdur-Rahmaan ibn 'Utbah ibn Mas'ood that 'Abdullaah ibn Mas'ood
(may Allah be pleased with him) purchased a slave-girl from his wife
Zaynab Ath-Thaqafiyyah. She made a condition to him 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 130 and
'Umar replied, "Do not approach her (i.e. don't have intercourse with
her) while anyone has a condition concerning her over you." 131
There is a similar report to this effect narrated on the authority of
'Abdullaah ibn 'Umar who said, "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,
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
Shu'bah in At-Tahhaawee's book, as has been mentioned above.

130 Al-Baajee writes in Al-Muntaqaa (4/211), "Despite the fact that 'Abdullaah ibn
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
As-Sunan Al-Kubraa, 5/236.
74 Al-Adl (38)
he could do with her what he wanted." 132 Prohibition here applies to

having intercourse with the salve-girl and not the act of buying her.
It is for this reason that Imaam Ahmad ibn Hanbal (may Allah have
mercy upon him) said, after he heard 'Umar's saying, 'Do not go near
her while anyone has a condition concerning her over you', "The sale
[transaction] is permissible, but do not have intercourse with her
because of the condition stipulated; he did not, however, say that the
sale was invalid." 133 Commenting on this, Ibn Qudaamah writes, "He
(i.e. Imaam Ahmad) interpreted the report based on its literal sense; in
fact, 'Umar and Ibn Mas'ood agreed on the validity of the transaction."134
Abu 'Umar ibn 'Abd al-Barr (may Allah have mercy upon him) also
writes, "'Umar's saying to ['Abdullaah] ibn Mas'ood, 'Do not go near her'
indicates that he approved the sale contract concluded but he forbade
him to have intercourse with her. This is the most obvious view in this
respect." 135
The reason for prohibiting him from having intercourse with her
despite the validity of the contract is because the slave-girl is not
considered to be totally owned, for this depends on the condition
stipulated by the seller. The ruling of this case is similar to that in which
a slave-girl is owned by two persons and thus none of is allowed to have
intercourse with her. That is why Ibn 'Umar (may Allah be pleased with
him said, "Intercourse [with a slave-girl] is not allowed unless [the
master] sells her, donates her or keeps her for himself; and no condition
should be stipulated in this regard."136
132 Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616.

133 See Ibn Qudaamah, Al-Mughnee, 6/171.
134 Ibid.
135 Ibn 'Abd al-Barr, Al-Istidhkaar, 19/68; Ibn 'Abd al-Barr (may Allah have mercy upon
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
transmitters (isnaad)is classified as 'authentic' (saheeh); for he reportedit on the

authority of 'Ubaydullaah ibn 'Umar al-Amree from Naafi' from Ibn 'Umar, and this
chain is considered to be one of the conditions set by Al -Bukhaaree and Muslim in
identifying authentic reports.
Al-Adl (38) 75
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
137 Ibn 'Abd al-Barr, Al-Istidhkaar, 19/73.

138 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/155-156.
76 Al-Adl (38)
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.
Al-Adl (38) 77
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
142 Istishaab literary means courtship or companionship. In Usool al-Fiqh (principles of

Islamic jurisprudence), istishaab means presumption of existence or non-existence of
facts. It can be used in the absence of other proofs (dalaa'il: sing. daleel). In fact, it has
been validated by a large member of scholars, though not all. In its positive sense,
istishaab presumes continuation of a fact (marriage or a transfer of ownership) until the
contrary is proved. However, the continuation of a fact will not be proved if the
contract is of a temporary nature (for instance, ijaarah, or lease). Istishaab also presumes
continuation of negative. Because of its basis in probability, istishaab is not a strong
ground for the deduction of the rules of Sharee'ah. Hence, when it comes in conflict
with another proof (daleel), the latter takes priority. (Translator's Note)
143 See Al-Qawaa'id an-Nooraaniyah, p. 214.
144 See Al-Kamaal-ud-Deen Ibn al-Humaam, Fath al-Qadeer, 6/'446; and Al-Kaasaanee,
Badaa'i' as-Sanaa'i', 5/170.

145 See Haashiyat Ibn 'Aabideen, 5/21.
78 Al-Adl (38)
absolute contract is actually part of the object of the contract (ma'qood

'alayhi), hence the stipulation of such a condition. Indeed, the buyer has
only given his money to the seller and agreed to conclude such a
transaction because of his awareness of such a condition which
constitutes part of the object of the contract (ma'qood 'alayhi).
Furthermore, their claim that the 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 constitutes an excess
without any return as it is not required by the contract or suited to it is
highly questionable.
Besides, their claim that any excess to the contract requirement
renders the contract invalid is unfounded, for Muslim jurists are agreed
as to the permissibility of stipulating deferment either in payment or in
delivery, which is not generally required by the contract and constitutes
a benefit to one of the contracting parties. Just as such a condition serves
the interest of the contract itself, the conditions which constitute a
benefit to one of the contracting parties serve the interest of the party
that stipulates it.
Eighth Evidence
They also argue that the condition stipulated by the buyer in the
tasreef contract — namely that the tangible asset of the transaction
(mabee') will be returned to the seller if it is not merchandised or does
not sell well—leads to some kind of ignorance and uncertainty, as it is
not known or certain when the tangible asset of the transaction (mabee')
will be returned or when the contract will be revoked. They also
mention that the Prophet (may Allah's peace and blessings be upon him)
has forbidden gharar146 ,147 and thus any contract which is concluded and
contains an uncertain condition becomes void due to the invalidity of
such a condition.148
This argument was refuted thus: There is no doubt that ignorance
and uncertainty (jahaalah) which is unknown is one of the grounds for
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.
Al-Adl (38) 79
rendering the contract invalid. However, ambiguity and uncertainty

which result in the buyer's stipulation that he will return the tangible
asset of the transaction (mabee') to the seller if it is not merchandised or
does not sell well does not constitute an excessive form of uncertainty
and ambiguity. In fact, such uncertianty is deemed forgivable, as it is
bound to lead to certainty and clarity. … and the majority of those who
conclude sale contracts with such a condition — whether it has been
expressly stipulated or is something people are accustomed to in their
dealings — impose this condition when buying fresh foods and other
food items with a limited validity period normally not exceeding twenty
days in most cases. In fact, such ambiguity and uncertainty is rather
slight and is more often than not bound to be known. Indeed, the
Maalikite scholars consider a sale contract concluded with an option
which gives one of the two parties to the contract a right to cancel the
sale within a stipulated time — such as until harvest time or date-
picking time — absolutely valid149 . This is also one of the views of the
Hanbalites and is the adopted and preferred view of ibn Taymiyyah (may
Allah have mercy upon them all). 150
Evidence furnished by those who maintain that the Contract
is Valid but the Condition is void
Proponents of the second view have furnished some of the evidence
brought forward by those who hold the first opinion. However, they
differ with them in that the stipulated condition is invalid but it does not
render the contract null and void. In support of their view, they cite the
following proofs:
First Evidence
'Aa'ishah (may Allah be pleased with her) said, "Bareerah came to
me and said, 'My people (i.e. masters) have written the contract for my
emancipation for nine awaaq151 [of gold] to be paid in yearly instalments
—one uqiyyah per year, so help me.'" 'Aa'ishah said [to her], "If your
149 See Al-Mudawwanah, 3/196; At-Taaj Wal-Ikleel Li Mukhtasar Khaleel, 6/500-501; and Al-
Mardaawee, Al-Insaaf, 5/99-100.
151 Awaaq (sing. uqiyyah) is equal to 128 grams, and may be less or more according to
different countries. (Translator's Note)
80 Al-Adl (38)
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

It is of two kinds:
154 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-Haawee al-Kabeer,

6/382.Ibn Qudaamah, Ash-Sharh al-Kabeer, 11/235. Ibn Qudaamah quotes Ibn al-
Mundhir as saying, "The report about Bareerah is firmly established, and we do not
know of any report which contradicts it. Therefore, it is necessary to adopt this view."
Al-Adl (38) 81
Several responses were made in refutation of this evidence including

the following:
1. Hishaam ibn 'Urwah is the only hadeeth narrator in whose
narration we find the statement "Let them stipulate that her walaa' will
be for them" in the hadeeth. In fact, Al-Muzanee quotes Imaam Ash-
Shaafi'ee as saying, "This is the most terrible mistake one can make.
Indeed, only Hishaam [ibn 'Urwah] narrated this [addition] but others
opposed him and even classified him as 'weak'." After citing this, Al-
Muzanee (may Allah have mercy on him) writes, "This [contention] is
more appropriate and better suited, for it does not befit the Prophet
(may Allah's peace and blessings be upon him) who is well-known for
his high position in the sight of Allah to disapprove of an invalid
condition people stipulated and at the same time allow his family
members to stipulate an invalid condition. In fact, he was rather
unwavering to make his family members observe Allah's Laws more
than anyone else." 155
Proponents of the second view rejected this response by contending
that Hishaam ibn 'Urwah was known for his reliability and
trustworthiness in narrating Prophetic reports and that the report he
narrated was agreed upon by Al-Bukhaaree and Muslim; therefore, it
has no defect and should not be rejected. 156
2. There is no indication in the hadeeth whatsoever that the
stipulation of walaa' and manumission is part of the contract; for
conditions are only invalid if they are stipulated in the contract;
therefore, the condition, as the hadeeth indicates, must have been
stipulated before the conclusion of the contract, in which case, the
Prophet's command to 'Aa'ishah to let them stipulate that her walaa'
would be for them was only by way of making a promise which does
not have to be honoured. 157
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.
82 Al-Adl (38)
Proponents of the second view also rejected this response by

asserting that it does not befit the Prophet (may Allah's peace and
blessings be upon him) to order someone to make a promise while he
knew that such a person would not honour such a promise. 158
3. The actual meaning of the Arabic letter 'la' (for) in the phrase
'washtaritee la hum' (which is translated here as 'let them stipulate that
[her walaa'] would be for them') is essentially ''alaa' (on or against), as
evidenced by the verses "If you did evil, [you do it] against
yourselves" 159 (where the Arabic word 'la haa' is translated as 'against
yourselves') and "on them is the curse" 160 (where the Arabic word 'la
hum' is translated 'on them'). This is the very interpretation provided by
Ash-Shaafi'ee as well as Al-Muzanee and At-Tahhaawee161 . Therefore,
the meaning would be "Impose a condition on them".
Proponents of the second opinion yet challenged this response by
quoting Imaam An-Nawawee thus: "The contention that the actual
meaning of the Arabic word 'la ' (for) in the hadeeth is 'alaa' (on or
against) is undoubtedly weak because the Prophet (may Allah's peace
and blessings be upon him) disapproved of stipulating a condition, and
were this word to mean 'alaa' (on or against), he would certainly not
have disapproved of the condition." 162
4. The Prophet's command in his statement "Let them stipulate that
her walaa' will be for them" signifies a warning which, on the face of it,
looks like a command but actually implies a prohibition, as evidenced
by the Qur'anic verse "Do what you will. Truly, He sees [clearly] all
that you do"163 . Ash-Shaafi'ee (may Allah have mercy upon him) writes
in this regard, "Because those who stipulate a condition which
contravenes that which Allah and His messenger have judged are
considered disobedient, and because one of the ways of disciplining the
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-
Shaafi'ee, Al-Umm, 8/438; and Fath al-Baaree, 5/239.

162 See An-Nawawee, Sharh Saheeh Muslim, 10/140; Ibn Taymiyyah, Majmoo' al-Fataawaa,
29/338, where Ibn Taymiyyah provides a detailed refutation of such a view..

163 Surat Fussilat, 41:40.
Al-Adl (38) 83
disobedient is not to honour the condition they have stipulated by way

of preventing them from doing so and deterring others from emulating
them, such discipline represents the mildest form of correction." 164
Proponents of the second opinion have also challenged this response
by contending that even though such understanding is probable in the
Arabic language, it is the literal sense (haqeeqah), and not the
metaphorical or figurative sense (majaaz), that applies here.165
In fact, there are many other responses166 in this respect, but the
evidence that will clarify the matter best (Allah knows best) is that the
Prophet (may Allah's peace and blessings be upon him) had informed
Muslims that the seller's stipulation that walaa' is for him and not for the
person who manumits the slave is invalid. This became common
practice amongst the people to such an extent that even Bareerah's
masters were aware of it. However, when they wanted to stipulate a
condition which they knew was prohibited, the Prophet (may Allah's
peace and blessings be upon him) issued the statement, "Let them
stipulate that her walaa' will be for them", which clearly signifies a
warning. Another example of the Qur'anic style which sould clarify the
point is the verse "Do [as you will], for Allah will see your deeds, and
[so will] His Messenger and the believers."167 This is further evidenced
by the Prophet's saying to 'Aa'ishah (may Allah be pleased with her),
"Buy and manumit her, and let then stipulate whatever they like." 168
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)
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
a. "O you who believe! Fulfil [all] obligations." 171

b. "Whenever you speak, speak justly even if a near relative is
concerned; and fulfil the Covenant of Allah. Thus does Allah command
you that you may remember." 172
2. Qur'anic verses and Prophetic traditions which prohibit
treachery and deception and warn against doing so. These include:
a. "Amongst them are men who made a covenant with Allah that if
He bestowed upon them of His bounty they would give [largely] in
charity and be truly among those who are righteous; but when He did
bestow on them of His bounty, they became misers and turned back
[from their covenant], averse [from its fulfilment]. So He had put as a
consequence hypocrisy into their hearts [to last] until the day whereon
they shall meet Him, because they broke their covenant with Allah and
because they lied [again and again]." 173
b. Fulfil the covenant of Allah when you have entered into it, and
do not break your oaths after you have confirmed them; indeed, you
have made Allah your surety, for Allah knows all that you do." 174
3. The Prophet (may Allah's peace and blessings be upon him) said,
"The signs of a hypocrite are three: (1) whenever he speaks, he tells a lie;
(2) whenever he makes a promise, he breaks it, and (3) whenever he is
entrusted [with something], he proves to be dishonest." 175
4. The Prophet (may Allah's peace and blessings be upon him) also
said, "Allah the Almighty said, 'I will be against three people on the day
of Judgment: (1) One who makes a covenant in My Name but he proves
treacherous; (2) One who sells a free person [as a slave] and eats the
price; and (3) One who employs a labourer and gets the full work done
by him but does not pay him his wages.'"176
171 Surat al-Maa'idah, 5:1.

173 Surat at-Tawbah, 9:75-77.
174 Surat an-Nahl, 16:91.
175 Reported by Al-Bukhaaree, Kitaab al-Eemaan, 1/21; and Muslim, Kitaab al-Eemaan,
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
(may Allah be pleased with him),.
86 Al-Adl (38)
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).
Al-Adl (38) 87
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
As-Sunan Al-Kubraa, 5/236.
88 Al-Adl (38)
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
182 See Ibn Rajab, Taqreer al-Qawaa'id Wa Tahreer al-Fawaa'id, 3/26.

184 See Ibn Taymiyyah, Majmoo' al-Fataawaa, 29/150; and Ibn Taymiyyah, Al-Qawaa'id an-
Nooraaniyah, p. 222.
185 Istishaab literary means courtship or companionship. In Usool al-Fiqh (principles of
Islamic jurisprudence), istishaab means presumption of existence or non-existence of

facts. It can be used in the absence of other proofs (dalaa'il: sing. daleel). In fact, it has
been validated by a large member of scholars, though not all. In its positive sense,
istishaab presumes continuation of a fact (marriage or a transfer of ownership) until the
contrary is proved. However, the continuation of a fact would not be proved if the
contract is of a temporary nature (for instance, ijaarah, or lease). Istishaab also presumes
continuation of negative. Because of its basis in probability, istishaab is not a strong
ground for the deduction of the rules of Sharee'ah. Hence, when it comes in conflict
with another proof (daleel), the latter takes priority. Istishaab is of four types:
1) Presumption of original absence (istishaab al-'adam al-aslee): This means that a fact or
rule which did not exist in the past is presumed to be non-existent.
2) Presumption of original presence (istishaab al-wujood al-aslee): This means that the
presence of that which is indicated by law or reason is taken for granted. For instance,
a husband is liable to pay "Mohr" by virtue of existence of a valid marriage.
3) Istishaab al-hukm: (continuity of the ruling): This presumes the continuity of general
rules and principles of law. For instance, when there is a ruling in the law (whether
prohibitory or permissive), it will be presumed to continue.
Al-Adl (38) 89
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
4) Istishaab al-wasf (continuity of attribute): This means to presume continuity of an

attribute until the contrary is established (for instance, clean water will continue to be
treated as clean water).
Scholars of Usool al-Fiqh (sources of Islamic jurisprudence)are in general agreement on
the first three types of istishaab. There is more disagreement on the fourth
one. (Translator's Note) (Translator's Note)
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.
90 Al-Adl (38)
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
190 'Araayaa (sing. 'ariyah) are distinguished date-palms. (Translator's Note)

191 Ribaa al-fadhl (interest in trade): This type of ribaa (usury) is the payment of an
addition by the debtor to the creditor in the exchange of commodities of the same
kind. (Translator's Note)
Al-Adl (38) 91
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.
92 Al-Adl (38)
In fact, the distinction made by some jurists between the

manumission of slaves (despite the immense virtues of setting slaves
free and despite the fact that the Lawgiver urges Muslims to do so) and
other acts is rather weak. As a matter of fact, some types of donations
are far better than setting slaves free! Maymoonah (may Allah be
pleased with her) manumitted a slave-girl without taking the Prophet's
permission. When he found out about this incident, he asked her, "Have
you already done it?" She replied, "Yes." The Prophet (may Allah's peace
and blessings be upon him) then said, "You would have got more
rewards if you had given her (i.e. the slave-girl) to one of your maternal
uncles." 195 Therefore, if the buyer or the seller stipulates that one of his
[poor] relatives be benefited [from something] or that he is given charity,
this is absolutely permissible. 196 Given that it is unanimously agreed that
it is permissible to take part of the tangible asset of the transaction
(mabee'), some acts are, a fortiori, also permissible.197
3. The harm that will be caused to people by considering such
conditions impermissible is actually more serious and greater than the
little harm which is feared to cause mutual hatred and 'consuming other
people's property unjustly'; for the type of gharar (risk and uncertainty)
involved is rather slight and people urgently need to engage in such
transactions. In fact, people's urgent need is given precedence over a
slight, forgivable form of gharar, especially when the parties to the sale
contract both benefit from the transaction: The seller benefits through
the merchandizing of his goods, and the buyer benefits by returning the
goods which he fails to merchandise or which do not sell well. In
reality, the Islamic Law (Sharee'ah) in its entirety, as Ibn Tamiyyah (may
Allah have mercy on him) argues, is founded on the principle that a
prohibited act becomes permissible when a certain harm, which is
essentially prohibited, clashes with an urgent need that is preponderant
and has more in its favour. Therefore, such an act is, a fortiori,
permissible if the harm is non-existent or rather slight. 198
195 Reported by Al-Bukhaaree, Kitaab al-Hibah, 22/915; and Muslim, Kitaab az-Zakaat,
2/694.
197 See Ibn Taymiyyah, Al-Qaaa'id an-Nooraaniyah, p. 214.
198 Ibid., p. 155.
Al-Adl (38) 93
4. Ibn Taymiyyah (may Allah have mercy on him) writes, "Those

who excessively consider unlawful those acts which they believe form a
type of gharar (risk and uncertainty) are bound to declare the
permissibility of what they have declared unlawful, either by not
adhering to the rules of the School of Jurisprudence which they follow
regarding this particular matter or by resorting to tricks. We have
indeed seen and heard of [many] people of this type; for they never
adhere to the principles of the School of Jurisprudence they follow when
they declare such matters forbidden, as they simply cannot do without
them." 199
He also writes, "Those who reject the employment of analogical
reasoning which they consider firmly established and do not carefully
consider the preponderant view which contradicts theirs do in fact make
many religious matters difficult; their minds become narrow and their
religion difficult." 200
5. The erudite scholar Ibn al-Qayyim (may Allah have mercy on
him) eloquently writes in this connection, "Contractual conditions are
important in the sight of the Lawgiver, a fact which many jurists are not
aware of; for they annul conditions not annulled by the Lawgiver, and
consider the contract invalid because of such conditions which they
consider invalid, as there is nothing indeed which points to its
invalidity. They actually contradict themselves regarding contracts
which permit and which do not permit conditions. They do not possess
a consistent criterion based on textual evidence. In fact, it is the legal
criterion established by textual evidence [from the Qur'an and the
Sunnah] which ought to be followed, namely that any condition which
contradicts the ruling issued by Allah in His Book is invalid, and any
condition which does not contradict [Allah's rulings mentioned in His
Book] are undoubtedly permissible. This can be further clarified by the
fact that observing a condition in a contract is tantamount to fulfilling a
vow; for invalid vows are only those which contradict the rulings Allah
mentions in His Book. Indeed, it is more appropriate to fulfil conditions
199 Ibid., p. 152.

200Ibid., p. 157.
94 Al-Adl (38)
regarding people's rights than to fulfil a vow which relates to one of

Allah's rights."201
II. The Ruling regarding the Sale with the Condition that
makes the Transaction of Sale contingent on a future Event
This is the kind of sale (also called bay' mu'allaq 'suspended
conditional sale') which is based on the condition that makes the
transaction of sale contingent on a future event. For example, the buyer
tells the seller, "If I manage to merchandise the commodity and sell it,
then that is fine; otherwise, the sale contract we have concluded will not
be binding"; or the seller may tell the buyer, "The goods which you fail
to merchandise or sell will be mine."
Muslim jurists (may Allah have mercy on them) are not agreed as to
the ruling regarding this type of sale. They have expressed the following
two opinions:
First Opinion
Making the sale contract conditional on a future event is not valid 202 .
This is the view adopted by the majority of the Hanafite203 , Maalikite204 ,
Shaafi'ite205 and Hanbalite206 scholars despite some forms which they
regard as exceptions.207
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-
Baajee, Al-Muntaqaa, 4/157-158; and Jawaahir al-Ikleel, 1/248.

205 See Rawdhat at-Taalibeen, 3/446; Al-Muhadh-dhab, 1/354; Al-MAnthoor Fee al-Qawaa'id,
11/373-374; Ibn As-Subkee, Al-Ashbaah Wan-Nadhaa'ir, 1/379; and Fath al-Mu'een

along with its commentary I'aanat at-Taalibeen, 3/6-7.
206 See Ibn Qudaamah, Al-Mughnee, 6/507; Al-Mubdi', 4/59; Al-Insaaf, 4/356; Sharh
Muntahaa al-Iraadaat, 2/23; and Kash-shaaf al-Qinaa', 3/195.

207 The Hanafites have excluded only one form of the forms of sale contracts which are
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
Al-Adl (38) 95
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.
96 Al-Adl (38)
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)
Al-Adl (38) 97
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.
214 See Ibn Qudaamah, Al-Kaafee, 2/18.

215 The Prophet (may Allah's peace and blessings be upon him) forbade this type of sale
as it constitutes a form of gharar (risk-taking, uncertainty). See Ibn al-Atheer, An-
Nihaayah Fee Ghareeb al-Hadeeth Wal-Athar, 2/414; and Al-Qhaadhee 'Iyyadh, Mashaariq
al-Anwaar, 2/106 and 222.
216 Habal al-habalah is the sale of what is in the womb of an animal : Al-Bukhaaree
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.
98 Al-Adl (38)
Thus, this cannot be labelled gharar, because in the case of uncertainty

and risk-taking (gharar), a contract is concluded whereby one party
receives the other party's money without the latter having an equivalent
counter-value or recompense ('iwadh), which he takes risks in seeking it.
If he does not get it, this then amounts to consuming other people's
wealth unjustly. This indeed is the true meaning of gharar which implies
risk-taking and gambling.218
2. The claim that the prohibition behind mulaamasah and
munaabadhah sales is their similarity to making the contract contingent
on a future event or condition is unfounded. In fact, these two types of
sale transactions are forbidden because of the element of uncertainty as
to the tangible asset of the contract, which remain uncertain in both
types of sale.219 With regard to the mulaamasah and munaabadhah types of
sale, if we demand to sell an article without giving the buyer a chance to
examine this article, then this sale amounts to uncertainty and risk-
taking, for the article may or may not be in good condition. It is because
of the resultant risk-taking that such types of sale are considered
prohibited, and none of the leading Muslim jurists deem such sale
transactions permissible.
However, if the buyer sees the article for sale and carefully examines
it and the seller says to him, if I throw this piece of cloth to you, I will
charge you such-and-such a price (as is the practice in munaabadhah), this
indicates that the sale transaction becomes contingent on the buyer's
consent to take the piece of cloth. In fact, this is similar to the so-called
usual practice of immediate exchange of considerations (mu'aataah), and
there is no difference whatsoever between the seller's saying, "Take this
piece of cloth (which both of them have examined) for two dirhams" and
"If you take this piece of cloth (which both of them have examined), I
will charge you one dirham for it". Similarly, there is no difference
whatsoever between saying, "Throw (or any other synonymous verbs) to
me that piece of cloth for one dirham" and "If you throw (or any other
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-
Fataawaa, 3/257; Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 138; and Al-Mabsoot,

13/194.
Al-Adl (38) 99
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
220 See Ibn Taymiyyah, Qaa'idah Fee al-'Uqood, pp. 228-229.

221 See Al-Gharar Wa Atharuhu Fee al-'Uqood, p. 145.
100 Al-Adl (38)

whatsoever, as is the case with bay'as-sineen222 and bay' habal al-

habalah 223 . These types of business transactions are forbidden because no
time limit is specified in them, as the buyer and the seller do not know
until when they have to wait. Therefore, failure to specify a time limit
will result in unnecessary harm. 224
Second Evidence
The suspended conditional sale (bay' mu'allaq) contradicts the sale
contract because the sale is a type of the contracts of ownership whose
effects are immediately witnessed: the ownership of the tangible asset of
the contract is immediately transferred to the buyer, and the stipulated
condition which makes the sale contingent on it at a future date prevents
it.225
In response to this evidence, Ibn Taymiyyah and his disciple Ibn al-
Qayyim (may Allah have mercy on them) refuted the claim that the
instant delivery of the sold item constitutes the basis in a sale contract in
three ways. Following are citations from the writings of Ibn Al-Qayyim
(may Allah have mercy on him) in this respect:
a. Ibn al-Qayyim writes, "The reply to the claim that "the tangible
asset of the contract ought to be instantly delivered" is that the asset of
the contract is one which the Lawgiver has made obligatory through the
contract or made binding by the contracting parties. In fact, neither the
Lawgiver, nor the parties to the contract have made the instant delivery
of the tangible asset of the contract obligatory. For at times the
contracting parties mutually consent to having the tangible asset of the
contract instantly delivered and at other times they stipulate delaying
delivery of either the payment or the sold item. The seller may have a
good reason for delaying delivery of the tangible asset of the contract,
just as Jaabir (may Allah be pleased with him) did when the Prophet
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,
2/33; and Ma'oonat Ulee an-Nuhaa, 4/92.
Al-Adl (38) 101

(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
102 Al-Adl (38)

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
Taymiyyah, Majmoo' al-fataawaa, 29/155-156.

233 See Al-Qaraafee, Al-Furooq, 1/229; and Professor Abu Zahrah, Al-Milkiyyah Wa
Nadhariyat al-'Aqd, p. 253.
Al-Adl (38) 103

In refutation of this evidence, it has been argued that the suspended

conditional sale does not contradict mutual complete satisfaction; for the
contracting parties are completely satisfied with the concluded
transaction and have expressed their mutual consent of making the
transaction conditional on a future event. For instance, if the seller says
to the buyer, "I will sell you this article if Ahmad is happy with [this
transaction]", and it is possible to know when Ahmad will express his
consent, the seller in this case has made his consent contingent on the
fulfilment of the condition he has stipulated, namely Ahmad's consent.
In this case, the seller chooses, of his own good pleasure, to give out
what is in his possession, and the buyer chooses, of his own good
pleasure, to give his money to the seller whenever the condition is
fulfilled. In fact, willingness is part and parcel of satisfaction, as the
Prophet (may Allah's peace and blessings be upon him) said, "It is
forbidden to take anything from a Muslim's wealth unless he consents to
it of his own free will." 234
Evidence Furnished by Proponents of the Second Opinion
Those who hold that the suspended conditional sale is permissible
provide the following evidence:
First Evidence
Allah the Almighty says, "He (i.e. the father of the two young
women whose flocks Moses watered) said, 'I intend to wed one of these
daughters of mine to you, on condition that you serve me for eight
years; but if you complete ten years, it will be [grace] from you.'" 235
Proponents of this view argue by quoting Ibn al-Qayyim thus, "The
stipulation of a future condition in the marriage of the daughter of this
[righteous] man from Median is the most correct form of marriage
contracts on the face of the earth, and this Islamic Law (Sharee'ah) of ours
has not come with a ruling which abrogates it." 236
This evidence triggered off a number of responses including the
following:
234 Reported by Al-Bayhaqee, As-Sunan al-Kubraa, hadeeth no. 11325.

235 Surat al-Qasas, 28:27
236 See I'laam al-Muwwaqqi'een, 3/387.
104 Al-Adl (38)

1. The well-known Qur'an exegete Al-Qurtubee writes, "Allah's

statement "one of these daughters of mine" indicate that this is an offer
and not a contract, for had it really been a contract, he (i.e. the father of
the two young women) would have specified the one of two his
daughters he wanted to marry off to Moses (peace be upon him).
Indeed, notwithstanding the fact that scholars are not agreed regarding
the permissibility of the sale contract in which the seller says to the
buyer, 'I will sell you one of these two slaves of mine at such-and-such a
price', they are unanimously agreed that such a statement is not
permissible when it comes to marriage contracts, because it is an
[optional] condition 237 , and no optional condition must be attached to
the marriage contract. 238
This objection was refuted in the following two ways:
 Al-Qurtubee's contention that scholars are unanimously agreed
that the optional condition is not permissible in the marriage contract is
not acceptable, for there is no unanimity of opinion in this respect, and
Abul-'Abbaas Ibn Taymiyyah (may Allah have mercy on him) was of the
opinion that kiyaar ash-shart (optional condition) is permissible in all
types of contracts. 239
 The objection to the suspended conditional agreement on the
pretext that scholars are unanimously agreed that kiyaar ash-shart
(optional condition) is impermissible in the marriage contract is to be
seriously reconsidered; for it may be that such practice was allowed in
Moses' law.
2. This evidence can only apply when we claim that Moses (peace
be upon him) consummated the marriage only when he set out on his
journey and spent the period upon which the agreement was contingent,
namely eight years. On this basis, suspension was established, for the
marriage agreement was made contingent on the completion of the
period agreed on. However, the claim that the verse does not indicate
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.
Al-Adl (38) 105

that Moses consummated the marriage as soon as the agreement was

concluded does not prove that suspension is permissible because in this
case it will be tantamount to stipulating conditions in the marriage
contract. 240 In fact, when the evidence is shrouded in probability, it fails
to be used as evidence.
3. There is nothing in the verse that points to suspending
acceptance in the formal exchange which took place between the
contractual parties indicating their willingness to enter into the
contractual agreement and therefore constitutes the contract itself.
Rather, it is an agreement with the stipulation that the dowry will be
Moses' employment for eight years.
Second Evidence
There are two reports here:
1. 'Umar ibn al-Khattaab (may Allah be pleased with him) made a
deal with the people that if he provided the seeds he would get half the
yield, and if they provided the seeds, they would get so-and-so much.241
2. Naafi' ibn al-Haarith, the Caliph’s officer in Makkah, narrated that
he purchased a prison house from Safwaan ibn Umayyah for four
thousand dirhams on condition that if the caliph approved of it, the deal
would be final; otherwise, he (i.e. Safwaan) would be given four
hundred dirhams. 'Umar (may Allah be pleased with him) took it. 242
Proponents of the second opinion argue that 'Umar ibn al-Khattaab,
the leader of the faithful, himself did what may support the view that
the suspended conditional sale is absolutely permissible; for he made
the agriculture sale contingent on a condition, and his Makkan officer
Naafi' ibn al-Haarith purchased a prison house on condition that he
would approve of it. These incidents were actually witnessed by the
240 See Al-Qurtubee, Al-Jaami' Li Ahkaam al-Qur'aan, 13/274.
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,
Book of Sale, 6/34; and Ibn Hazm, Al-Muhallaa, 7/260.
106 Al-Adl (38)

Prophet's companions, and none of them objected to what he had

done.243
Third Evidence
Making the sale contract contingent on a future event is something
which people need and their interests require, and no mukallaf 244 can
dispense with it. 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 little harm which is feared to cause mutual
hatred and 'consuming other people's property unjustly'. For the type of
gharar (risk and uncertainty) involved is rather slight, and people
urgently need to engage in such transactions. In fact, people's urgent
need is given precedence over the slight, forgivable form of gharar,
especially when the parties to the sale contract both benefit from the
transaction. In fact, the Islamic Law (Sharee'ah) in its entirety, as Ibn
Tamiyyah (may Allah have mercy on him) argues, is founded on the
principle that a prohibited act becomes permissible when a certain harm,
which is essentially prohibited, clashes with an urgent need that is
preponderant and has more in its favour. Therefore, such an act is, a
fortiori, permissible if the harm is non-existent or rather slight. 245
After examining the forgoing proofs and arguments furnished by
proponents of both opinions, it seems to me (and Allah knows best) that
the preponderant view is the second one, namely the one whose
proponents hold that it is permissible to engage in the suspended
conditional sale provided that a time limit should either be clearly
expressed in the contract or known to the people based on the
established customs in society. This is due to the cogent evidence they
have advanced in addition to the fact that neither Almighty Allah nor
His Messenger (may Allah's peace and blessings be upon him) make
unlawful what people urgently need in their lives. Rather, these needs
are lawful, and no one has the right to declare them unlawful. 246
243 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/388.

244 A mukallaf is any morally responsible, mature and sane person. (Translator's Note)
245 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/387; and Ibn Taymiyyah, Al-Qawaa'id
an-Nooraaniyah, p. 155.
246 See Ibn Taymiyyah, Qaa'idah Fee Al-'Uqood, revised by Muhammad Haamid al-Fiqee,
p. 227.
Al-Adl (38) 107

This is the view of the author of Mataalib Ulee an-Nuhaa247 as well as

the view of Sheikh Muhammad ibn 'Uthaymeen (may Allah have mercy
on him). The latter writes, "The correct view in this respect is that the
suspended conditional sale is permissible; there is no objection to one's
saying, 'I will sell you such-and-such an article if you bring me such-
and-such a thing', but a time limit is to be specified here. He should
rather say, 'I will sell you such-and-such an article if you bring me such-
and-such a thing within three days, two days, or ten days', for example,
so that the sale will not remain permanently suspended." 248
III. The Ruling regarding a Sale Contract with an

Optional Condition249
This section consists of four parts:
A. The Ruling regarding a Sale Contract with an Optional
Condition
Most Muslim jurists from the four schools of jurisprudence as well as
others250 are of the opinion that the optional condition is permissible and
that it does not contradict the requirement of the sale contract. In fact,
some of them have mentioned that all Muslim scholars are agreed in this
regard. These include An-Nawawee (may Allah have mercy on him)
who said, "It is unanimously agreed that it is permissible." 251 Kamaal-ud-
Deen ibn al-Humaam al-Hanafee (may Allah have mercy on him) also
said, "There is a general consensus [among Muslim jurists] that the
optional condition is permissible." 252
247 See Ma'oonat Ulee an-Nuhaa Sharh al-Muntahaa, 3/78.

248 Ash-Sarh al-Mumti' 'Alaa Zaad al-Mustaqni', 8/250, Dar Ibn al-Jawzee edition.
249 The optional condition (Khiyaar ash-shart) 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)
250 See Al-Mansoot, 13/38; Tabyeen al-Haqaa'iq, 4/14; Al-Baajee, Al-Muntaqaa, 5/55;
Mawaahib al-Jaleel, 4/409; Al-Umm, 7/105-10; Asnaa al-Mataalib, 2/50; Al-Majmoo',

9/223; Al-Mughnee, 6/38; and Al-Insaaf, 4/372.
251 See Al-Majmoo', 9/233.
252 See Fath al-Qadeer, 6/300; and Ibn al-Qattaan, Al-Iqnaa' Fee Masaa'il al-Ijmaa'
108 Al-Adl (38)

However, the fact of the matter is that there is no general consensus

on this matter; for Ibn Hazm adh-Dhaahiree (may Allah have mercy on
him) opposed this thus, "Any sale which is concluded along with an
optional condition for the buyer or the seller, both of them or for others,
for an hour, a day, three days, or for a shorter or longer period, is
invalid, whether or not they (i.e. contracting parties) choose to bring it
into effect. If the buyer takes possession of it (i.e. the tangible asset of the
contract) with the proprietor's consent and is unintentionally destroyed
while it is still in his possession, he is not liable to anything. If, however,
he takes possession of it without its proprietor's consent, following the
decision of a judge or not, then this act of his amounts to usurpation
(ghasb)253 and he is responsible for a compensation; and if he does
something to it, then he is an offender and is also responsible for a
compensation." 254
In fact, Ibn Hazm excludes only one form in the permissibility of the
optional condition, namely, "If he says when he engages in selling or
buying to the other party, 'No cheating' 255 , then he has the option to
rescind the sale contract within three days and nights; if so he desires, he
can return the tangible asset of the contract with a defect or not, with or
without deception; and if so he desires, he can keep it. However, if the
period of three days elapses, his optional condition is cancelled and he
has to buy the item." He also writes, "If he cannot say laa khilaabah (i.e.
no cheating, there should be no attempt to deceive) due to an
impediment in his tongue or incorrectness in speaking Arabic, then he
can pronounce it the way he can, to the best of his ability. If he still
cannot do so, then he can say something equivalent in his language to
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)
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)."
Al-Adl (38) 109

the Arabic phrase laa khilaabah. If, however, he produces a different

expression in Arabic, such as 'no fraud, 'no deception', 'no cunning, 'no
harm', and the like, he will not enjoy the right of the optional condition
given to the one who says laa khilaabah." 256
Attributions of varying statements to Sufyaan Ath-Thawree257 and
'Abdullah ibn Shibrimah 258 are also reported. Nonetheless, the
preponderant view is that the optional condition is absolutely
permissible for the following reasons:
1. We have already confirmed the permissibility of the conditions
in the contract and the fact that only those of them that are forbidden or
contravene the ruling Allah states in His Book are invalid, for conditions
are originally and essentially valid.
The erudite scholar Ibn al-Qayyim (may Allah have mercy on him)
writes, "Any condition which contradicts Allah's rulings and
contravenes the rules in His Book is undoubtedly invalid, be it what it
may. Conversely, any condition [stipulated in the contract] which does
not contravene His rulings nor contradict the rules in His Book, while
the act stipulated can be left or done without the stipulation of such
condition, this act becomes binding as a result of this condition."
Highlighting this golden rule, he further writes, "Nothing can be
excluded from these two matters, as long as they have been confirmed
by textual evidence from Allah's Book and the Sunnah of His Messenger
as well as the general consensus of the Prophet's companions. In fact,
conditions may not be cancelled following sectarian views or
jurisprudential opinions, for these cannot destroy a fundamental rule of
the Islamic Law (Sharee'ah). Conditions with respect to morally
responsible, mature and sane people259 is tantamount to vows as the
rights of the Lord of the worlds; thus any act of obedience which can be
carried out before taking a vow becomes obligatory following the
making of the vow. Similarly, any condition which can be fulfilled
256 See Ibn Hazm, Al-Muhallaa, 7/316-317.

257 See Bidaayat al-Mujtahid, 3/399; and Al-Muhallaa, 7/264.
258 Ibid.
259 Mukallafoon, sing. Mukallaf. (Translator's Note)
110 Al-Adl (38)

without stipulating it becomes obligatory following the stipulation.

Indeed, conditions make acts obligatory when rights clash. 260
2. '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)." 261
Even though this hadeeth does not explicitly state the condition, it
implicitly states that the stipulation of the condition does not contradict
the object of the contract. 262
3. Abu Hurayrah (may Allah be pleased with him) narrated that
the Prophet (may Allah's peace and blessings be upon him) said, "Do not
tie up udders of camels and sheep, and he who buys them after that has
been done has two courses open to him: after he has milked them he
may keep them if he is pleased with them, or he may return them along
with a saa'263 of dates if he is displeased with them. "264
4. Another narration reads, "Whoever buys a sheep which has been
kept unmilked for a long period has the option of three days: He can
keep it if so he wishes, or he can return it if so he wishes, but he should
pay one saa' of dates for the milk, and not wheat." 265
This Prophetic reports make it clear that the Prophet (may Allah's
peace and blessings be upon him) gives the person who buys a sheep or
camel whose udder has been tied up (i.e. kept unmilked for a long time)
the option to return them up to a maximum of three days after milking
260 Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 3/302-303.

261 Reported by Al-Bukhaaree, Book of Sale, 2/745; and Muslim, Book of Sale, 3/1165.
262 See Fath al-Qadeer. 6/300.
263 A saa' is a measure that is equal to about 3 kg. (Translator's note)
264 Reported by Al-Bukhaaree, Book of Sale, 2/755; and Muslim, Book of Sale, 3/1155.
265 Reported by Abu Daawood, As-Sunan, Book of Sale, 3/271; An-Nasaa'ee, Al-Mujtabaa,
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.
Al-Adl (38) 111

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
266 See Ash-Shaafi'ee, Al-Umm, 7/106.

112 Al-Adl (38)

period of time"; will such an optional condition be unreservedly valid or

will it be considered invalid unless a specific period of time is fixed?
Two opinions have been expressed regarding this matter, which I
will mention after clarifying that this issue differs from the one in which
the buyer stipulates he will return the commodity if it does not sell well.
The reason for this is because the present case consists of an optional
condition without specifying or stipulating the mechanisation of the
commodity. The question discussed in the first part of this section
relates to stipulating the optional condition for merchandising the
commodity or not, and there is a big difference between the two issues.
Muslim jurists have expressed different opinions as to the stipulation
of the optional condition without fixing a certain period of time, such as
by saying, 'henever we want', whenever the buyer wants', 'I have the
conditional optional' without fixing a certain period of time, and simply
stipulating a period of time whose occurrence is not known, such as
'when Ahmad comes', 'when the season is over'. Will the contract in this
case be valid or not? The following different opinions have been
advanced:
First Opinion
Both the contract and the condition are invalid if no specific period
of time is fixed. This is the view held by the Hanafites269 , the Shaafi'ites270
and one of the views adopted by the Hanbalites271 . These scholars,
however, use different terms to refer to the condition of such a contract.
The Hanafites use the term 'faasid' (incorrect, imperfect), while the
Shaafi'ites and the Hanbalites use the term 'baatil' (void, invalid, of no
legal force) on the basis of the difference between these terms in the
contracts of exchange." 272
Some of their differences include the fact that the Hanafites contend
that if the sale is definitively included within the three days following
the agreement, it is valid; otherwise, the contract will be 'faasid'
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.
Al-Adl (38) 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.
114 Al-Adl (38)

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,
2/50; and Al-Mughnee, 6/43.

282 See Al-Mughnee, 6/43; and Rawdhat at-Taalibeen, 3/448.
Al-Adl (38) 115

thus he is entitled to dispose of the tangible asset of the contract if the

optional condition has been stipulated by him 283 ; therefore what you
claim only reflects your opinion in this matter, and those who differ
with you in this regard do not have to adopt it. Furthermore, denial of
disposal of the tangible asset of the contract applies only if both parties
or just the seller stipulate the optional condition; as for the buyer, he is
not to dispose of it; and if he does, then this is an indication that he has
accepted the sale and given up his own optional condition.
Fourth evidence
The Hanafites view that either the sale contract is definitively
finalised during the three days following the sale agreement or the
condition should be dropped. They contend that by dropping the
optional condition which contradicts the contract requirement anyway
or the period exceeding three days, the incorrect (faasid) condition
becomes like it has never been stipulated. Furthermore, by dropping it,
it becomes clear that the optional condition has only been stipulated up
to this period [of three days]; and because it is not the optional condition
that renders the contract invalid but rather exceeding the th ree-day
period, dropping the condition before the fourth day eliminates the
prohibition which makes the contract void before the onset of the fourth
day. Therefore, the invalidity is not in the contract itself. 284
In response to this evidence, it has been argued that the claim that it
is not the optional condition that renders the contract invalid but rather
exceeding the three-day period is rather groundless. In reality, it is the
condition which is invalid and it is stipulated in the contract. Besides, a
contract can either be valid or void: If it is valid along with the
condition, it does not become void as a result of the stipulation the
contracting parties make; however, if it is void, it cannot become valid,
as in the case where someone sells one dirham for two dirhams and then
drops one of them.285
283 See Al-Mubdi', 4.71; and Rawdhat at-Taalibeen, 3/448.

284 See badaa'i' as-Sanaa'i', 5/178; fath al-Qadeer, 6/303. Some Hanafite jurists such as al-
Karkhee maintain that sale with an invalid optional condition amounts to a suspended
contract ('aqd mawqoof); thus if the contracting parties drop the condition before the
end of three days from the time of making the agreement, the contract is valid.
285 See Al-Mughnee, 6/43.
116 Al-Adl (38)

Evidence Supplied by Proponents of the Second Opinion

The optional condition, they argue, applies to the tangible asset of
the contract (mabee'); therefore, a period of time ought to be fixed so the
asset may be returned or the sale rescinded within this period of time.
This, however, differs depending on the nature of the tangible asset of
the contract. In fact, it seems that the text [of the hadeeth] implies this
understanding, as it is one of those textual proofs, [in the terminology of
experts in sources of Islamic jurisprudence], whose specific ruling
actually implies a general one286 .
Two responses have been made in refutation of this evidence:
1. The claim that the prevailing customs ('urf) should be considered
as to stipulating a specific period of time is baseless, for the prevailing
customs must not be considered when it comes to optional conditions. 287
In fact, one of the conditions for considering the prevailing customs and
practices regarding any act is that such customs and practices are
prevailing and recognized by all people in society, or people in a
particular region or amongst experts in a certain field or profession.
People's knowledge of such prevailing customs means, as some jurists
define it, all persons concerned practise them at all times, and not
observing them at times and neglecting them at other times. 288
2. Acting on the prevailing and established customs becomes a
binding evidence to be followed only if it does not contradict a condition
stipulated by any of the two contracting parties. 289 If one of the
prevailing customs amongst people is to have the option to keep or
return the tangible asset of the contract within a certain period of time,
and one of the contracting parties stipulates that he has the optional
condition to return it whenever he wants, then such a condition
contravenes the said prevailing custom, in which case the custom is of
no consequence and the agreement and condition agreed upon are to be
honoured.
286 See Ibn Rushd, Al-Muqaddimaat along with Al-Mudawwanah, 5/418; and Bidaayat al-
Mujtahid, 3/402.
288 See Abu Nujaym al-hanafee, Al-Ashbaah Wan-Nadhaa'ir, p. 94; and Dr. Ya'qoob al-baa
Husayn, Qaa'dat al-'Aadah, pp. 63-64.

289 See Durar al-Ahkaam, 1/62.
Al-Adl (38) 117

Ibn Taymiyyah (may Allah have mercy on him) supplies the

evidence that if one or both contracting parties stipulate an optional
condition without fixing a certain period of time, the contract is valid
and the optional condition to rescind the sale lasts for three days only.
'Abdullaah ibn 'Umar (may Allah be pleased with him) said, "I heard a
man with a speech impediment who came to the Prophet (may Allah's
peace and blessings be upon him) and complained to him that he was
always deceived in business transactions. The Prophet (may Allah's
peace and blessings be upon him) told him, 'Say at the time of entering
into a transaction, laa khilaabah (No cheating, or there should be no
attempt to deceive). And then you have the choice to return any article
you have bought within three days. If you are happy with it, keep it;
otherwise, return it.'" 290
The words 'laa khilaabah' (no cheating, there should be no deception)
in the hadeeth indicate that the stipulation of the optional condition lasts
for three days, as evidenced by the Prophet's statement 'and then you
have the choice to return any article you have bought within three days'.
Therefore, if the contracting parties use these words or something with a
similar meaning when stipulating an unidentified or infinite optional
condition, then they are to be made to make it up to three days, as
evidenced by the abovementioned hadeeth.291
In response to this argument, however, it has been contended that
this applies only in the case of the two contracting parties who utter
these words or something similar in meaning while they know what
they mean. Therefore, whatever is known according to the prevailing
customs is similar to whatever is stipulated; if, however, they are
ignorant of the ruling as to uttering such words, then they cannot
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.
118 Al-Adl (38)

stipulate any optional condition whatsoever, just as An-Nawawee292 has

stated. Thus, if someone who is ignorant cannot stipulate any condition
whatsoever, then the person who knows the ruling but means more than
three days cannot, a fortiori, stipulate any optional conditions either.
Evidence Supplied by Proponents of the Third Opinion
Proponents of this opinion contend that the contract is valid while
the optional condition is void and cite the evidence advanced by
proponents of the first opinion but they argue that such evidence clearly
proves that the optional condition is invalid as it constitutes an extreme
form of uncertainty and risk-taking (gharar). They also contend that the
contract does not become void for the following reasons:
1. The hadeeth narrated on the authority of 'Aa'ishah (may Allah be
pleased with her) who said, "Bareerah came to me and said, 'My people
(masters) have written the contract for my emancipation for nine awaaq
[of gold] to be paid in yearly instalments —one uqiyyah per year, so help
me.'" 'Aa'ishah said [to her], "If your masters agree, I will pay them the
whole sum provided the waalaa' 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'293 would be for them." When the Prophet
heard that and 'Aa'ishah told him about It, he said to her, "Buy Bareerah
and let them stipulate that her waalaa' will be for them, as the waalaa' is
for the manumitted." '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
292 Ibn Taymiyyah, Majmoo' al-Fataawaa, 9/224.

It is of two kinds:
Al-Adl (38) 119

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:
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.
120 Al-Adl (38)

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
narration goes against another authentic hadeeth. (Translator's Note)

300 See Mawsoo'at Aqwaal al-Imaam Ahmad Fee Rijaal al-Hadeeth Wa 'Ilalahu, 3/197, Dar 'Ilm
al-Kutub edition.
301 See Tahdheeb at-Tahdheeb, 3/462.
Al-Adl (38) 121

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.

303 See Meezaan al-I'tidaal, 3/407.
304 See Al-Jaami' Fee al-Jarh Wat-Ta'deel, 2/405.
305 See Tahdheeb at-tahdheeb, 3/463.
306 See Meezaan al-I'tidaal, 3/407.
307 See Buloogh al-Maraam Min Adillat al-Ahkaam, p. 183, Mu'assasat al-Kutub ath-
Thaqaafiyah Publishers, revised by Muhammad Haanid al-Fiquee.
122 Al-Adl (38)

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
Al-Adl (38) 123

be confirmed for the buyer, either by executing the optional condition or

employing the restrictive condition "the party whose benefit is not
realised as a result of dropping the condition can redress this by
rescinding the contract". Therefore, I believe (Allah knows best) that this
restrictive condition should not be absolute. Rather, we see if the period
of time is not very long by the standards of the prevailing customs ('urf)
in society, in which case the commodity will not undergo any change
and the buyer will not be subject to any harm which is not legally
admissible, then we can apply this restrictive condition; otherwise, the
contract will still be valid but the condition should be dropped. The
rationale for such a procedure is that the buyer's claim to drop the
condition due to the harm to which he may be subject is not more
appropriate and more deserving of the seller's claim to rescind the
contract owing to the harm top which he may be subject. As the juristic
principles go, "Adh-dhararu laa yazoolu bi mithlihi" (One wrong must not
be removed by another wrong)309 and "Al-kharaaju bidh-dhamaan310 "311
C. The Period of the Optional Condition312
Muslim jurists have expressed the following three opinions
regarding this issue:
First Opinion: This period should be limited to three days and not
more than that. This is the view of Abu Haneefah 313 , Ash-Shaafi'ee314 , Al-
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-
Raheem al-Asnawee, At-Tamheed, 1/410.

312 Again, the optional condition (khiyaar ash-shart) refers to condition the buyer or seller
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.
124 Al-Adl (38)

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
315 See Al-Majmoo', 9/191.

316 Al-Majmoo', 9/191.
317 See Badaa'i' as-Sanaa'i', 5/174; and Al-Mabsoot, 13/41.
318 See Bidaayat al-Mujtahid, 3/400-401.
319 See Al-Mughnee, 6/38-39; and Kash-shaaf al-Qinaa', 3/202.
320 Badaa'i' as-Sanaa'i', 5/174; and Al-Mabsoot, 13/41.
Al-Adl (38) 125

opinion before he makes a final decision regarding the sale agreement —

all this for his own benefit. It could also be the case that he may not find
out about the usefulness of the asset of the contract until after three
days; therefore, persistently sticking to a period of three days which
must not be exceeded requires cogent textual evidence.
3. In the estimation of the contracting parties, because such periods
of time only supplement the contract, they amount to postponing the
sale contract. 321
D. The Ruling as to the Stipulation of an optional
Condition regarding a Specific Article of Sale
Contracting parties in tasreef contracts generally have recourse to
stipulating optional conditions regarding specific assets, as the buyer
more often than not cannot merchandise all the articles he has
purchased. The question that arises here is: Can he possibly stipulate an
optional condition regarding specific items, or does the optional
condition apply to the whole commodity? Also, what will the case be
whether or not he makes a stipulation to this effect?
In reply to this question, scholars have expressed three opinions, as
follows:
First Opinion
The optional condition regarding a specific asset is invalid and
consequently renders the contract null and void. This is the view of the
Hanafites322 , the Shaafi'ites323 and one of the views adopted by Imaam
Ahmad324 . The Hanafites, however, argue that invalidity applies only if
the items of sale are dissimilars325 ; if, however, they are similars326 , the
option is certainly valid. 327

322 See Al-Mabsoot, 13/67-68; Tabyeen al-Haqaa'iq, 4/20; Al-Bahr ar-Raa'iq, 6/23 and
Haashiyat Ibn 'Aabideen, 4/584-585.
323 See Rawdhat at-Taalibeen, 3/445; and Al-Ghurar al-Bahiyyah Sharh al-Bahjah al-
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
126 Al-Adl (38)

The author of Adh-Dhur al-Mukhtaar writes, "If [someone] sells two

slaves on condition that he has the right to impose a condition regarding
one of them; ff he states the price of each one of them and then specifies
the one regarding whom he intends to stipulate a condition, the sale
agreement is valid by reason of his knowledge of the asset of the
contract as well as the price; if, however, he specifies the one regarding
whom he intends to stipulate an optional condition without stating the
price, or if he just specifies the one regarding whom he intends to
stipulate an optional condition or just states the price, the condition is
not valid." 328
Commenting on the above, Ibn 'Aabideen (may Allah have mercy on
him) writes, "By the two slaves, the author means they are 'dissimilars',
as opposed to one 'dissimilar' or two 'similars'; for if he stipulates an
optional condition regarding half of a 'dissimilar' asset, the condition is
certainly valid; it is also valid in the case of two 'similars' as there is no
difference whatsoever." 329
Despite the fact that the Hanafites contend that the optional condition
regarding a specific asset is invalid if the asset regarding whom the
optional condition is not stipulated, or as a result of not clearly stating
the price of each one of them, they do, however, regard the condition
valid by way of istihsaan330 if the asset consists of 'similars' on condition
that they do not exceed three in total.
The author of Al-Mabsoot writes, "If [someone] buys two pieces of
cloth, each of which for ten dirhams with the stipulation that he has three
days to decide on which one to keep and which one to return, we deem
the contract valid by way of istihsaan. The same applies to a maximum of
happen to perish, are to be replaced by an equal quantity of something similar to

them; and the latter are things which, in the same circumstances, are to be replaced by
their value. Because these two classes are aptly styles 'si milars' and dissimilars' by
Hamilton, I find them appropriate to use in this translation. ((translator's Note)
326 Refer to the previous footnote. (Translator's Note)
327 See Al-Misbaah al-Muneer, 2/629; and Dr. Nazeeh Hammaad, Mu'jam al-Mustalahaat
al-Fiqhiyyah Fee Lughati al-Fuqahaa', pp. 280-298.

328 See Haashiyat Ibn 'Aabideen, 4/584-585.
329 See Adh-Dhur al-Mukhtaar along Haashiyat Ibn 'Aabideen, 4/584-585.
330 This implies the rejection of qiyaas (analogical reasoning) and the admission of the
discretion or judicial preference. (Translator's Note)
Al-Adl (38) 127

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
331 See Al-Mabsoot, 13/55; and Haashiyat Ibn 'Aabideen, 4/584.

332 See Al-Mudawwanah, 3/208; and Sharh al-Kharshee, 5/;123.
333 See Haashiyat Ibn 'Aabideen, 4/584.
334 See Al-Mudawwanah, 3/208.
335 See Al-Mughnee, 6/40; and Kash-shaaf al-Qinaa', 3/205.
336 See Al-Mabsoot, 13/55; Al-Ghurar al-Bahiyyah, 2/430; and Al-Mughnee, 6/40.
128 Al-Adl (38)

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

339 See Al-Mabsoot, 13/55.
Al-Adl (38) 129

founded on the principle that a prohibited act becomes permissible

when a certain harm, which is essentially prohibited, clashes with an
urgent need that is preponderant and has more in its favour. Therefore,
such an act is, a fortiori, permissible if the harm is non-existent or rather
slight.340
Evidence Furnished by Proponents of the Third Opinion
The Hanbalite jurists hold that the optional condition is invalid and
advance the same evidence furnished by proponents of the first opinion,
but they argue that the invalidity of the condition does not render the
contract void. I have already cited this body of evidence more than once,
and there is no need to repeat it here.
It remains to be mentioned, though, that of all three opinions, the
second one has more in its favour as its proponents have furnished the
most cogent evidence which outweigh the evidence provided by the
proponents of the other two opinions. Allah knows best.
The Ruling as to Delegating Others to Sell

Something for a Known Price and Giving the Broker
the Amount Exceeding the Fixed Price
As an example of this kind of transaction, as I have already
mentioned, the owner of the commodity says to the store owners, "Sell
such-and-such a commodity for SR 100 and whatever more you get is
for you." Another example is when he says to a broker, "Sell the article of
SR 10; and if you get more, the profit will be divided between us", in
which case the broker's remuneration will constitute part of the extra
profit that exceeds the amount fixed.
Scholars have expressed the following two different opinions
regarding the ruling of this form of transaction:
First Opinion
Some scholars contend that this form of transaction is not valid and
the broker should only be entitled to ujrat al-mithl (prevailing /standard
price)341 . This is the view of the Hanafites342 and the Maalikites343 . Ibn
340 See Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 155.

341 This means the wages prevalent in the market for a certain service. (Translator's Note)
130 Al-Adl (38)

Qudaamah attributed it to Ash-Shaafi'ee344 and Ibn Hajar also attributed

it to the majority of Muslim scholars. 345 It is also the opinion of
Ibraaheem an-Nakh'ee346 , Al-Hasan al-Basree347 , Taawoos348 and a
number of scholars from amongst the early generations of Muslims.
The author of 'Uyoon al-Masaa'il writes, "[A question:] A man
handed a garment over to another man and told him, 'Sell it for ten
[dirhams]; and if you get more, the profit will be divided between us.'
The [broker] sold it for twelve dirhams. Abu Yoosuf said regarding this
question, 'The broker should get the wages prevalent in the market for
his service (ujrat al-mithl), and I would not give him one extra dirham;
and if he sold it for ten dirhams, I would not even give him ujrat al-mithl.'
Muhammad also said, 'He should receive the wages prevalent in the
market for his service in both cases. Even if he does not sell [the
garment], he should receive his wages if he demands them in return for
the work he has done.'" 349
The author of Al-Mudawwanah also writes, "If a man hands over a
riding animal to another man (i.e. the broker) and tells him, 'Sell it for
100 dinars; and if you get more, the profit will be divided between us', or
'Sell it, and whatever price you get will be divided between us', the
broker, according to [Imaam] Maalik, should receive the wages prevalent
in the market for his service (ujrat al-mithl), and the whole price should
go to the riding animal's owner." 350
Second Opinion
Some other scholars argue that this form of transaction is certainly
valid. This is the view of ['Abdullaah] ibn 'Abbaas351 (may Allah be
342 See Al-Fataawaa al-Hindiyyah, 4/451; Al-Fataawaa al-Khaaniyah Bi Haamish al-Hindiyyah,

2/326; and Uyoon al-Masaa'il, 2/241.
343 See Al-Mudawwanah, 3/241; and Haashiyat az-Zarqaanee 'alaa Mukhtasar Khaleel, 7/9.
345 Fath al-Baaree, 4/569.
346 See 'Abdur-Razzaaq, Al-Musannaf, 8/235.
347 See Ibn Abee Shaybah, Al-Musannaf, 10/582.
349 See Abul-Layth as-Samarqandee, 'Uyoon al-Masaa'il, 2/241.
351 See Ibn Abee Shaybah, Al-Musannaf, 10/582; and Al-Mughnee, 8/71.
Al-Adl (38) 131

pleased with him), Ibn Seereen, 'Ataa', Shurayh and Ash-Sha'bee352 . It is

also the opinion of the Hanbalites353 and that of Ishaaq ibn Raahawayh.354
Ibn Seereen said, "If [the owner] says [to the broker], 'Sell it for such-
and-such a price; and if you get more, the profit will be for you or
divided between us', there is no objection to such [a transaction]." 355
Ibn Qudaamah also writes, "If a man hands a piece of cloth to
another man (i.e. the broker) and tells him, 'Sell it for such-and-such a
price; and if you get more, the profit will be divided between us', the
sale contract is absolutely valid. [Imaam] Ahmad also expressed this
opinion." 356
Evidence Furnished by Proponents of both Opinions
1. Evidence furnished by Proponents of the First Opinion
Those who hold the first opinion argue that the price is unspecified
as it may or may not exist; furthermore, if the broker sells [the garment]
for more than the fixed price, he will receive remuneration while he does
not know how much it is going to be; and if he sells it at the fixed price,
he will receive no remuneration. 357 In fact, one of the conditions of the
hire contract is knowledge of the price in terms of (1) quantity or type,
(2) quality and (3) the term of delivery. 358
2. Evidence Furnished by Proponents of the Second Opinion
1. 'Ataa' narrated from ['Abdullah] ibn 'Abbaas (may Allah be
pleased with him) who said, "There is no harm if one says [to a broker],
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.
355 Reported by Al-Bukhaaree, Book of Sale; and Fath al-Baaree, 4/568.
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.
132 Al-Adl (38)

'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)
359 Reported by Al-Bukhaaree, Book of Sale; and Fath al-Baaree, 4/568.

361 A mudhaarabah is an investment partnership, whereby the investor (rabb-ul-maal)
provides capital to another party/entrepreneur (mudhaarib) in order to undertake a

business/investment activity. While profits are shared on a pre-agreed ratio, loss of
investment is born by the investor only. The mudhaarib loses its share of the expected
income. (Translator's Note)
362 See Al-Mughnee, 8/71; and Fath al-Baaree, 4/569.
363 Ju'aalah (also called ji'aalah: contract of reward) constitutes wages, pay, stipend or
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
agent of Y. In this capacity X may execute the affairs of Y. Wakaalah is a widely

applicable phenomena in Islamic practice which is often used in financial transactions:
whenever a party cannot personally supervise a given affair, it deputizes another
party to execute it on its behalf. (Translator's Note)
365 See Al-Kharshee, Mukhtasar Khaleel, 7/76; Asnaa al-Mataalib, 2/441; and Al-Insaaf,
6/390.
Al-Adl (38) 133

contracts because it is a form of brokerage that is estimated based on the

work done. In fact, in ju'aalah transactions, it is not a condition for the
service for which a price for performing it to be known, as it may be
both known and unknown. 366 The reason why it is similar to wakaalah is
because the commodity owner deputises store owners to execute their
affairs on his behalf. However, according to some scholars, if wakaalah is
practised in return for an equivalent counter-value or recompense
('iwadh), it may not be termed as such, because the 'iwadh may be in the
form of a stipulated wage or fee (ujrah) or reward of labour (ju'l). In this
case, if it is a stipulated wage or fee (ujrah), then it is an ijaarah (hire)
contract; and if it reward of labour (ju'l), it is ju'aalah.367
It is also a form of ju'aalah given the lack of knowledge of the
recompense ('iwadh) if this does not prevent the handing over of the
commodity, and this is one of the views adopted by the Hanbalite
jurists368 . Perhaps the statement of 'Abdullaah ibn 'Abbaas (may Allah be
pleased with him) lends ample support to this view.
The preponderant view regarding this issue is that it is valid and
permissible for the following reasons:
1. People need this type of transactions in order to promote the
commodity owners' products owners. In addition, lack of knowledge
and the element of uncertainty in any business or a contract about the
subject of contract or its price (gharar) are forgivable, given that the
service rendered in the ju'aalah contract is also unknown [and thus
forgivable], even though lack of knowledge as to the service rendered
may far exceed the lack of knowledge of the 'iwadh (recompense) if this
does not prevent the handing over of the commodity. In fact, this form
of transaction was practised even during the time of the Prophet's
companions, hence its permissibility.
2. Slight forms of risk-taking and uncertainty are forgivable in a
number of contracts, such as the watering and agriculture contracts. The
dispute feared to arise as a result of the seller's increasing the price many
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.
134 Al-Adl (38)

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.
369 See Ibn Taymiyyah, Al-Qawaa'id an-Nooraaniyah, p. 155.

370 See Al-Mudawwanah, 3/466; Al-Baajee, Al-Muntaqaa, 5/111; Kash-shaaf al-Qinaa', 4/11,
Mataalib Ulee an-Nuhaa, 3/612 ff.
371 See Al-Fataawaa al-Hidiyyah, 4/450.
372 See Al-Mabsoot, 15/115; and Al-Fataawaa al-Hidiyyah, 4/441.
Al-Adl (38) 135

b. Sale Contract made Contingent on a Future Event. Regarding this

form of transaction, Muslim jurists use the expression "ta'leeq al-bay' 'alaa
shart'373 (making sale contingent on a future event). In fact, it is one of the
forms of acceptance in the sale contract and is the opposite of the so -called
'aqd munjaz374 (completed contract).
Making sale transactions contingent on future events in the tasreef
contract takes place in the following two ways:
 By using one of the conditional particles 375 . An example of this is
when 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. To
illustrate, the seller may tell the buyer, "The goods which you do not
merchandise and sell to others will be mine."
The main differences between the sale contract which includes the
restrictive condition and the sale contract made contingent upon an event in
the future stem from the differences between shart (condition) and ta'leeq
(making something conditional upon something else). Following are the
principal differences between these two forms:
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
restrictions and become binding as soon as it is concluded. In fact, such a contract

incorporates the original form found in all contract. The offer in such a contract will be
something like "I'll sell you my house for such-and-such an amount." See 'Alee al-
Khafeef, Al-Mu'aamalaat ash-Shar'iyyah, pp. 220-221; and Muhammad abu Zahrah, Al-
Milkiyyah Wa nadhariyat al-'Aqd, p. 256.
375 The Arabic conditional particles include, among other things, in, idhaa and lau which
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.
136 Al-Adl (38)

 Unlike the stipulation of a condition in the sale contract which

requires the use of such phrases as ''alaa an' or 'bisharti an', which both mean
'on condition that', making a sale transaction contingent upon a certain
condition requires the use of a conditional particle, such as in (if) and any of
the other conditional particles.
 The sale that is made contingent upon a certain condition does not
become effective prior to the fulfilment of the condition upon which it
depends. When 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 actually makes the sale contract with the
seller contingent upon the fulfilment of the future condition, namely the
merchandising and selling of goods. On the contrary, the condition
stipulated in the sale contract is there and its rulings and obligations under
the contract become binding as soon as the mode of expression in the
contract is issued. 376
 The act of making the sale contract contingent upon a future
condition becomes rather inconsequential regarding the contract and its
future rulings. To put it bluntly, as soon as the condition upon which the
contract becomes contingent is met, the contract will be regarded as though
there has never been a condition binding it, and all its rulings and
obligations under the contract will become effective.
As for the condition stipulated in the contract, it actually affects the
rulings and obligations under the contract and will have a twofold function:
Either (1) to restrict the rulings and obligations under the contract after the
contracting parties have had the freedom to dispose of the tangible asset of
the transaction (mabee'), such as the seller's stipulation that he would live in
the house he has sold for a month or to ride the riding animal he has sold to
a certain place; or (2) to confirm the requirements of the contract, such as
meeting the requirements of the object of the contract; an example of which
is when the seller stipulates, in the case of deferred payment, the existence
of a certain pledge or collateral (rahn)377 or guarantor (kafeel)378 or the
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
Al-Adl (38) 137

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.
138 Al-Adl (38)

of sale contingent on a future event is the 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.
3. The preponderant view (Allah knows best) regarding the ruling on
the sale contract which is based on the condition that makes the transaction
of sale contingent on a future event is the one whose proponents contend
that the contract is valid if this is bound to realise people's benefits and does
not include anything that contravenes the commands of Allah or His
Messenger.
4. Muslim jurists have expressed different opinions as to the
stipulation of the optional condition without fixing a specific period of time,
such as by saying, 'whenever we want', whenever the buyer wants', 'I have
the conditional optional' without fixing a specific period of time, and simply
stipulating a period of time whose occurrence is not known, such as 'when
Ahmad comes', 'when the season is over'. Will the contract in this case be
valid or not?
5. The view which has more in its favour (Allah knows best) is the one
whose proponents argue 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. Therefore, I believe (Allah knows best) that this restrictive
condition should not be absolute. Rather, we should see if the period of time
is not very long by the standards of the prevailing customs in society ( 'urf)
in which case the commodity will not undergo any change and the buyer
will not be subject to any harm which is not legally admissible, then we can
apply this restrictive condition; otherwise, the contract will still be valid but
the condition should be dropped. The rationale for such a procedure is that
the buyer's excuse to drop the condition due to the harm top which he may
be subject is not more appropriate and more deserving of the seller's excuse
to rescind the contract owing to the harm to which he may be subject. As
the juristic principles go, "Adh-dhararu laa yazoolu bi mithlihi" (One wrong
must not be removed by another wrong) 382 and "Al-kharaaju bidh-
dhamaan383 "384
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,
Al-Adl (38) 139

6. Muslim jurists have expressed three different opinions regarding

the period of the optional condition, and the view which has more in its
favour is the one whose proponents contend that 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.
7. Muslim jurists have expressed three different opinions about the
ruling as to the stipulation of an optional condition regarding a specific
article of sale. Can the buyer possibly stipulate an optional condition
regarding specific items, or does the optional condition apply to the whole
commodity? Also, what will the case be whether or not he makes a
stipulation to this effect? The preponderant view is the one whose
proponents argue that 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.
8. The preponderant view regarding the delegation of a broker to sell a
certain item for a specific price and to keep whatever more money he gets is
that it is absolutely valid. In fact, this is the view of 'Abdullah ibn 'Abbaas
(may Allah be pleased with him) whose opinion none of the Prophet's
companions opposed.
9. If the commodity owner says to the broker, "Sell this item for, say,
100 [dirhams] and take ten [dirhams]' — in which the case remuneration in
terms of quality and quality is known — then such a transaction is
permissible, according to all Muslim jurists.
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-
Raheem al-Asnawee, At-Tamheed, 1/410.
140 Al-Adl (38)

The Marketing Contract Juristic Categorization and Ruling

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The Marketing Contract Juristic Categorization and Ruling

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A Refereed Study

The Marketing1 Contract

Dr. Abdullaah ibn Naasir asSulamee2

I. Linguistic and Technical Definitions

Qurtubee's Al-Jaami' Li Ahkaam al-Qur'aan, 6/23, al-Kutub al-'Ilmiyyah Publishers.

 A statement one of the two contracting parties makes to the other

II. Linguistic and Technical Definitions

6 Anees al-Fuqahaa', p. 203.

 'To turn away or aside'. The Qur'anic words "Thumm-an-sarafoo"

9 See Lisaan al-'Arab, 9/189-192; Al-Mu'jam al-Waseet, p. 513; Al-Qaamoos al-Muheet, p.

The statement "or entrust him…" includes the fourth type of

Part I: Juristic Categorisation

something that is to be manufactured which the seller undertakes to provide, af ter

names to certain dealings and forms of transactions as long as they are

1. Some Hanafite jurists define it as "stipulating a condition that was

16 See Al-Hamawee, Ghamz 'Uyoon al-Basaa'ir, 4/41.

Ar-Rawdh al-Murbi', 4/392; and Ibn Muflih, Al-Mubdi', 4/51.

II. Sale Contract made Contingent on a Future Event

restrictions and become binding as soon as it is concluded. In fact, such a contract

1/120; and Durar al-Hukkaam Sharh Gharar al-Ahkaam, 2/376.

29 See Al-Hakamee, Ash-Shuroot al-Ja'liyyah Fee 'Aqd al-Bay', p. 12.

something else). Following are the principal differences between these

32 See Az-Zarkashee, Al-Manthoor Fee al-Qawaa'id, 1/270; Ash-Shaadhlee, Nadhariyat ash-

stipulates, in the case of deferred payment, the existence of a certain

Some other buyers fix an unknown period of time by saying, for

33 This means to pledge or lodge a real or corporeal property of material value, in

IV. Authorising Someone to Sell the Goods at a specific Price

Part II: The Islamic Ruling

37 See Al-Ghurar al-Bahiyyah Fee Sharh al-Bahjah al-Wardiyyah, 3/311.

ash-Shaytaan, 2/114; and Tabyeen al-Haqaa'iq, 5/1.

The Maalikites do maintain, however, that this applies as long as the

usurious transactions, (2) conditions which lead to risk-taking, uncertainty, deceptive

2/31; An-Nawawee, Rawdhat at-Taalibeen, 3.400, Haashiyat al-Jamal, 3/74-75; and

two types of invalid conditions, namely:

46 Ibn Abee Shaybah, Al-Musannaf, 11/248.

Ma'oonat Ulee an-Nuhaa Sharh al-Muntahaa, 4/63-64; and Al-Insaaf, 4/350-351.

evidence from scholars' reports or from analogical reasoning; however,

of the contract (ma'qood 'alayhi) if it is a human being certainly renders

according to the standard of Baghdad. (Translator's Note)

Bahr ar-Raa'iq68 writes, "Analogical reasoning determines that such [a

different countries. (Translator's Note)

of emancipation for a certain sum) and Fath al-Baaree, 5/443.

contravenes Allah's Book and His conditions…In fact, the stipulated

the Prophetic reports mentioned in Saheeh Muslim.

asset he has bought for a certain period of time.

his father, Kitaab al-Fitan, hadeeth no. 6551.

then such a view is not acceptable; furthermore, no cogent evidence

91 Reported by Al-Bayhaqee, As-Sunan al-Kubraa, hadeeth no. 11325.

tangible asset of the transaction (mabee'), or a certain pawning (rahn)93 is

102 See Ma'aanee al-Aathaar, 4/47.

suspected of falsehood or is openly wicked in speech and action or is guilty of

Mughnee Fee Adh-Dhu'afaa', 1/332.

 Muhammad ibn Sulaymaan adh-Dhahlee, who is also in the

the chain of transmitters. (Translators Note)

Taymiyyah in Al-Fataawaa al-Kubraa, 6/177 and Ibn al-Qayyim in I'laam al-

The most accurate view regarding the interpretation of the

al-Manbajee, Al-Lubaab Fee al-jam' Bayna as-Sunnati Wal-Kitaab, revised by

The following responses have been made in refutation of this

purchase her as long as there is a stipulation [attached to the

Shu'bah in At-Tahhaawee's book, as has been mentioned above.

As-Sunan Al-Kubraa, 5/236.

he could do with her what he wanted." 132 Prohibition here applies to

132 Reported by Maalik in Al-Muwwatta', Book of Sale, hadeeth no. 616.