BismiLlahir Rehmaanir Raheem
In the name of Allah, the Most Beneficent, the Most Merficul
BUSINESS TRANSACTIONS (BUYING AND SELLING)
MAN By Nature is SOCIAL AND PROMISCUOUS. He lives and thrives through social and contractual need. His needs are so numerous and multidimensional that he, alone and by himself can not fulfill all his needs and desires. He requires some one to help him as he himself helps others to achieve their aim and objects. The Divine Scheme of Creation has this prime objective in view that human beings are born with distinction capabilities that through mutual cooperation that the Divine object of sustenance and development of human progress on earth moves form stage to stage without let and hindrance. The creature urge in one satisfies the accomplishment of material needs of another. This in other words means the everlasting phenomena of "demand and supply", is at the very core of human progress in this world. Some one has his interest centered in commerce and business, someone is inclined to use his intelligence and labour in agriculture, while some others, more capable and qualities, seek their betterment and prosperity in politics or in military professions.
This ever moving phenomena of `give and take' `demand and supply' continue enabled in one way or the other. One of the channels of human want and their satisfaction is the most common practice of Buying and Selling which on account of ever rising level of dealings has become more and more complex and irrigated in number and nature. Islam being the Deen of Divine Ordination has given due importance to this phase of human dealings to their minutest details so that greed and avarice, which by way bargain in commercial transaction may not spoil the purity and sanctity. If one hand, Islam teaches and guides the finer and succinct aspects of worship, social and domestic virtues in our personal and corporate life it on the other hand, has given us detailed and essential instruction and commandants in this most common and important department of human life namely `Business Transaction' or simply `Buying and Selling'.
Just as in matters of religious practices something are permissible or impermissible, halal and haram, in the same way there are phases of halal-o-haram in this branch of human dealings, unless therefore, a person is aware what is good and evil in business he may fall into the ditch of evil and suffer punishment in this world and the Hereafter. There is a clear warning in the Holy Quran,
(Do not eat (usurp) your wealth (assets) with evil unrighteous intention except if it be in trade and business on which you (mutually) agree).
Further it is said,
(East of the permissible and pure from the Provision given to you by Allah and fear Allah in Whom you believe.)
The Holy Prophet (Allah's peace and grace be upon him) has said that `any one who earns Haram wealth if he spends it in the way of Allah (sadaqah), it will not be accepted and if he spends for his benefit, it will carry no blessing and whatever he leaves in the world on his death, will be his assets to go to He'll.'
The Holy Prophet (Allah's grace and peace be upon him) has also said that the `search and labour for an honest and halal subsistence is a great obligation (farz - ordination by Almighty Allah) after the devotional and religious obligations such as Namaz, Fasting, Haj and Zakat etc.
It is the well know fact to which we are all witnesses that the most common source of earning income (wealth) is through the commerce business or in simple words, through buying and selling things of all kinds, from the very small things to things of huge descriptions and denominations. But in this chapter we are concerned with transaction in things which are of common needs for almost all classes of people, among which are the earnings through honest manual labour. The Prophets of Allah and the great men in the sight of Allah have set examples for others to follow and emulate. In this respect the following few tradition (Hadees) will serve as guidelines of inspiration which will induce and en course the common peoples for setting their life patterns in the most profitable pursuits nor from the mundane points of view but also for earning rewards in the Hereafter.
The Holy Prophet (Allah's grace and pleasure be upon him) has said:
There is food better than that which has been secured through honest and hard manual labour. Surely, Hazarat Dawood (May Allah's peace be on him) earned his subsistence through labour by hand.
One who earns (his living) through honest labour is dear to Allah as a Friend.
On being asked as to what work/source of earning is the best. He replied: The work done by man with his hand, and the honest transaction.
The honest trader and businessman shall be in the company of apostles (Ambia), The Righteous and the Truthful (Siddiqeen) and Martyrs (the Shaheeds who lay down their life for the Cause of Allah).
The traders and dealers shall be raised as addicts of immorality *except that business dealer who is righteous, truthful and does favours to others.
It is for these reasons that the learned scholars (Ulama) has advised and warned people that unless they attain reasonable true and finer knowledge of business transaction, they should not venture to enter this field.
PROBLEM:In the Shariat terminology the word `Bai-e' meaning sale (or buying and selling stands for the transaction which is earned on (1) through exchange of things with things (known in modern language of commerce as BARTER SYSTEM) or (2) exchange of things with money. This transaction is done either through words of mouth or by deeds. In the former case the basic principles are Eajab-o-Qubool (profferment or presentation of things and the acceptance thereof).
(Note: This Eejab-o-Qubool is similarly to ceremony of this very nomenclature at the Time of Nikah between the bride and the bridegroom - Translator).
In the alternative dealing of business known as sale by deeds is done through actual exchange of things through things or cash without uttering words, because sets of things are kept for sale with the prices already announced/made known as a regular practice.
PROBLEM:-n a `buying - selling', one party (may a person or a group of persons) which purchases any thing commodity is called as `Mushtari' or purchaser - buyer, while the other party, that of sellers is called Ba'ye, the seller (the individual or the group). We shall call them as buyer and seller respectively.
PROBLEM:In this deal of buying - selling, there are certain conditions which must be fulfilled before any transaction will be accepted as fair and equitable.
(1) Both the `buyer and seller' should be sensible (of common wisdom or senses), Note: the deal done by lunatics and minor children will not be reed valid.
(2) Transactors / dealers must be different persons. A man can not be a buyer (purchaser) and seller at one and the same time. However the father or the guardian of the minor child (ren)
can do so in that he may sell the goods of the minor child/war on his behalf and purchase it for himself. Or the Qazi may sell the goods on behalf some orphan and purchase the same goods on behalf of other orphan, with a profit. Similarly, a man can be a messenger / agent of both the parties to do the dealing on agreed terms.
(3) The terms of offer (Eejab) and acceptance (Qubool) in respect of goods and price must accord with another. Any variation in this behalf should be agreed mutually.
(4) The transaction of offer (Eejab) and acceptance (Qubool) should take place at the same place and at the same time.
(5) The terms of transaction should be announced and heard by both the buyer and the seller clearly so as to avoid any misunderstanding afterwards.
(6) The things offered for sale should be present/available physically at the time of offer, it should be agreeable and durable (Muta'qaw'wim) in the possession of the seller (mamlok), and transferable and worthy of being given in trust (Maqdoor-ul-Tasleem). For example, the sale of fruits before their appearance is not valid. In the same way the grass in the field can not be sold and the water of the canal or will or the animal of game or funt can not be sold unless they are given possession of physically or materially.
(7) The sale should not be time conditioned ( athing can not be sold for only a given period of time).
(8) The goods offered for sale and the price thereof should be definite and beyond dispute and controversy.
PROBLEM:-In respect of selling what is commanded is that the article of sale should be handed over to the purchaser and the seller should be owner (possessive) of the price value of the things sold. However if the transaction is kept in abeyance till a particular time, then the deal shall be completed when as the appointed time the sale is completed will mutual consent, the exchange of the article and the price come in respective possession.
PROBLEM:-The process of Eejab (offer of sale) and the Qubool (acceptance of sale) is determined in the order of priority, which also confirm the deal in respect of transfer of the article and the price thereof.
PROBLEM:-The agreement of sale and purchase should be either in the past tense (sold, purchased) or in the present tense (I sell, I purchase/buy) or one in the present tense and the other in past tense (I sell, I purchased). But in any case, it should not in the future tense.
PROBLEM:-The terms of purchase must be in clear words. Any condition imposed in business ransaction which may give different interpretation in respect of thing sold/purchased or the mode of payment in cash or in barter exchange will not be correct in terms of these Shariat Laws.
PROBLEM:- Proposal for sale of nay article/good and its affirmation (eijab-o-qubool) must be done in the same sitting. If the man who accepts the sale becomes absent from the sitting, then the whole process becomes void. However if the buyer conveys his affirmation through some person when the sitting is not over, then the deal will be correct.
PROBLEM:- In between the two persons making proposal for sale and the other who accepts, the latter has a right to accept or reject it in the same sitting (This acceptance or rejection of a deal is known as Khay'ar-e-Qabool, the right to accept). There is inheritance in Khayare Qabool meaning that if the buyer dies the deal is complete, then his inheritors can not use the right of the deceased as a matter of course. In that event, the Eijab (presenting for sale) lapses and as such the question of inheritance to use the right of the deceased does not arise.
PROBLEM:- If of the two namely purchaser and the seller, goes away from the sitting (before transaction has taken effect) or the proposer engages himself in some affair other the present deal, then the transaction become void. The seller can withdraw his offer but once the offer has been accepted, it can not the withdrawn.
PROBLEM:- When Eijab-o-Qabool (offer and acceptance0 are over then the transaction becomes complete and binding, now no charge can be made without the consent of the party concerned. It is also necessary that before entering into any bargain both the seller and the buyer must obtain, personally or otherwise satisfaction of one another as regards their merits etc.
PROBLEM:- Articles/goods obtained form shopkeeper on credit and the prices paid according to agreed manner, the transaction in this way is permissible.
Note: The nature of transaction, mentioned at pages 286-287 and terminologies used are either absolute in the present days of Business and Commercial deals have undergone tremendous changes, even otherwise their translator, is too complex and cumber some. These have therefore been skipped over. As a matter of fact almost the entire chapter on Khareed-o-Farokht, is more as a classic record of Shariat laws. Still attempt has been honestly made to reproduce as much Mas'ail (Problems) as the intentions / spirit behind their introduction are still valuable both as guide and for practical purposes.
PROBLEM:- Wheat, rice barley and all others grain, can be sold and purchased on measurement as well by weight, either by actual weighting or by guess. But by guess only the grain is purchased in some other exchange. Sale of Grain for exchange of cash id permissible, but grain for grain must be exchanged by actual weight or measurement, otherwise any quantity becoming more or less than actual quantity will come within the purview of interest (su'd, which is haram). However if the difference in quantity is less than half a saa, then it is permissible because in less than half a saa in weight/measurement does not amount to deal in interest (su'd).
PROBLEM:- When a house is purchased then all the constructed and unremovable articles come with in the purview of sale / purchase shariat laws.
PROBLEM:- When agricultural land is sold, all the small or big trees bearing fruit are all included in the transaction, However a dry tree which is still not uprooted, it is not a part of transaction, it is just a lump or wood lying on the ground, small plants of fruit tress which are removed after some time and planted elsewhere in the farm are included as part of transaction.
PROBLEM:- On purchasing fish if a pearl comes out, then if it is in the shell, it belongs to the buyer. If it is the pearl without the shell, then it should be returned to seller provided the fish was caught in the bait. The pearl will remain a trust (amanat) with the fish catcher. If no trace of its real owner is available, even after due publicity, then the pearl should be sold and the amount given is charity. If a pearl is discovered in the stomach of the hen then it should be returned to the seller.
PROBLEM:- The cultivation /agriculture standing on piece of land belongs to the seller if it is sold without an agreement as regards the crops etc. Similarly the tree/trees bearing fruit on being sold the purchaser will have to make a clear understanding with the seller, otherwise the fruits on the trees in question will go to the seller. These conditions also apply to the plant, of (sweet smelling) flower, prior understanding a right to be reached, before plants are handed over to the buyer.
PROBLEM:- When an agricultural land or a fruit bearing tree is sold, it is obligatory to cut the crop and pluck the fruits before handing over possession to the buyer provided the cost of land/tree is paid, otherwise the seller will be allowed to keep the crops/fruits till the transaction is complete.
PROBLEM:- In the above mentioned if the seller desires to keep the crop/fruits standing for some time and he is prepared to pay the cost thereof, then he can do so with he consent of the buyer.
PROBLEM:- If the tree is purchased with intentions to cut it, then the land below the tree is not included in the deal. However if it is purchased to keep it standing, then the land below the tree is included in the deal and it will go to the purchaser.
PROBLEM:- IF a tree has been purchased with the intentions to cut it down, then the buyer shall be asked to cut and take the tree away. He can not leave it standing. However, if he has purchased the tree to keep it standing, in that case the buyer shall not asked to cut it. If he cuts the tree, he can plant another tree there, because the price of land now belongs to the buyer.
PROBLEM:- To sell the agricultural land before the ripening of the crops on the condition that the land will remain with the seller till the crop is ripe, is impermissible. It is also impermissible in respect of an agricultural where the crop is standing to ask the buyer to let the crop stand till it is ripe for harvesting.
PROBLEM:- In the sale of land, all those things are included which are meant for preservation such as trees, houses, whether there is specific mention in the sale agreement or not, However dry trees bamboos grass are not included as they are not preservable.
PROBLEM:- The sale of orchard (fruit-garden) before the blossoming of flowers buds and the fruits is not permissible, even if some fruits have appeared and the rest are expected (it is also imperssible). The buyers shall have clear the trees by plucking the fruits. He can not be allowed to let all the fruits get ripened before be vacates the tree. However if in more fruits appear after the sale of the tree (which were not included in the sale) then the sale shall become in valid because now there remains no distinction in the sale of the previous an those appearing late. On the event of a decision if so derived, as to which fruits belong to the buyer and the seller, an oath will have to be taken between them.
PROBLEM:- If fruits on at the trees are purchased without mention the condition as to when the fruits be removed from the trees. If the seller permits to pluck the fruits and if more fruits appear, they are the rightful property of the buyer (the rest of the details in this problem are merely hypothetical and a bit complex). The same also applies to the next problem.
PROBLEM:- Part or parts of thing including animal on which exclusive right of the buyer is valid, can be exempted from the sale of that article for example, from the bulk of grains, some quantity can be purchased. It is not obligatory that the whole bulk be purchased. Similarly from the herd of goats, a single goat can be purchased. The things so picked up from the bulk are known as exceptions.
PROBLEM:- If a hose in purchased for demolitions then the exception of wood, bricks (debris) is valid.
PROBLEM:- IF the thing meant for sale is to be measured, weighed or counted and extra payment is to be made on there accounts, then the payment is to be borne by the seller.
The fee for examining the currency in a matter of loan, shall be paid by loan taker.
PROBLEM:- The payment of brokerage to the broker is to be made to by the seller, it the former has arranged the sale of goods with his permission. If the broker has only worked as a middle man and the selling was done by the owner of the goods, then the payment of the brokerage may be done as is customary at that place.
PROBLEM:- The sale of the article is to be done on cash payment on the spot, then the buyer has no right to impose any condition as regards payment or not be quality of the goods/article, without paying the price he can not take possession of the article. The Seller has a right to stop handing over the articles. If the article of sale is not present on the spot, the seller can not demand the cash payment. If the sale is in the form of exchange of goods on both sides, then the articles should be presented simultaneously, to complete the deal.
PROBLEM:- If the purchaser makes some change in the article of purchase for which possession is not necessary, then this change is not valid. If he make the change when possession before payment is necessary, then this change/alteration is permissible.
PROBLEM:- If the buyer keeps the article with some one as a trust or kept it for use temporarily or he lets the seller to keep with some one else which he does, then in all these cases the possession takes place, or he keeps the article with the seller, for temporary use or on hire or he places the article as pawn, after making part payment, then in the latter event, possession does by the buyer does not place.
PROBLEM:- The buyer buys oils and tells the seller to send it to some one by his man, now if the bottles falls and breaks on the way, there the loss shall be of the buyer. However if he tells the shopkeeper with any one of his men and the loss occurs then the loss shall be of the seller.
PROBLEM:- If after purchasing an article it was left with the seller telling him he shall it the next day. Supposing the thing sold was an animal which died during the night. In this case the loss shall be of the seller, because the buyer had not the possession, the purchaser has nothing to do with the loss.
PROBLEM:- A thing was sold but the price was not paid, It was kept with third person with the promise that the buyer will pay the price and take the thing, the thing was lost with the third person. In this case also the loss is of the seller. If that third man after receiving part price he hands over the thing to the buyer of which incident the seller is not aware of , now the seller can take the thing back from the buyer.
PROBLEM:- Suppose a piece of cloth is purchased the price of which has not been paid which would entitle the purchaser to take it in his possession. He told the seller to place the cloth with another person on the plea that the buyer would pay the price. The buyers kept the cloth with the third person where it was lost. In this case also the loss in that of the seller, because the possession is still the seller. Therefore the loss shall be of the seller.
PROBLEM:- In a sale deed any thing change made at the behest the buyer will amount to the possession of the buyer even if m thing remains with the seller and the price has not been paid by the buyer. (The buyer will have to pay the price and take possession of the thing.)
THE POWER / AUTHORITY FOR PLACING CONDITION (KHYAAR-E-SHART)
In a sale and purchase transaction is open to both the seller and the buyer not to make a deal as final in the very beginning, but make it condition that the bargain shall be final only all necessary things have been settled and if anything is found wanting the deal will lapse. This is often necessary both for the seller and purchaser because on account of lack of experience or in complete examination/inspection of the goods / article in deal, difficulties and differences arise at some stage which could be avoided if proper precautions were taken before declaring the deal as final. This exercise of authority is known in the Shariat terminology as `Khaya'r-e-Shart) in a foreign language, we shall use the original terminology in this section in subsequent paragraphs (or in short K.S.), K.S. may be used for both the seller and the buyer as the only parties in the deal as it may be for any one of them or any one else as the third party.
PROBLEM:- K.S is not permissible before making a commitment to undertake a deal definitely. If there is a difference of opinion between the buyer and the seller, One says that K.S. was there in the deal while the other denies this, then the party claiming K.S. should be asked to produce witnesses in support of his stand.If he fails to do so, then the other party's stand will be taken as correct.
PROBLEM:- The time limit of K.S. is maximum three days. It can be less, but not more. It the deal is in respect of a thing which is perishable and the buyer has the K.S. for only three days (the thing may not last for that time). In such a case ,the buyer will be asked to cancel the deal or declare the deal as valid (in spite of K.S.). If some one purchase this perishable thing without K.S., but remains absent or disappears without making payment or taking possession, then the seller has the right to deal with another person.
PROBLEM:- If there is no mention of K.S. or the period is not quite clear or any other ambiguous condition then in all there cases K.S. is faulty or inoperative.
PROBLEM:- The time limit for K.S. was fixed for more than three days, but before the expiry of his period the party holding K.S. declares the deal as valid. This is so, but if three days are over to without declaring the deal as valid, then the deal becomes invalid.
PROBLEM:- The buyer said to the seller, `If I do not pay the price with in three days, then the deal between us shall be treated as canceled.' This plea is permissible under K.S. IF he pays the price in time the deal is finalised, otherwise it becomes withdrawn.
PROBLEM:- The seller kept the K.S. to himself and as such the article for sale did not come out in the open, but the buyer took possession either with the permission of the seller or by force and it was destroyed/lost while in the possession of the "buyer", then latter (buyer)will have to pay a reasonable amount as ransom
/compensation to the seller. Or if the article is meant for exchange with a like thing, then that latter like article lost / damage with the seller, then there is no compensation. The deal becomes null and void.
PROBLEM:- If the K.S. is with the seller, then the price does not in the hands of the purchaser, but it does not go in the possession of the seller.
PROBLEM:- If the buyer has kept the K.S. with himself then the article of sale goes out of the possession of the seller.
PROBLEM:- The article of sale is in the possession of the buyer and it has been damaged, then price shall be paid by the buyer and if the K.S with the seller, then the cost is due on the buyer.
PROBLEM:- Both the seller and the buyer have K.S. with them, then the article will not go out of authority of the seller, nor will the price will not be out of the possession (i.e. property or milkiyat) of the buyer. Then, if the seller makes any use (Tasarruf) of it, then the deal will become void. If the buyer makes any use of the price, then the deal shall become from the buyers's side.
PROBLEM:- Who so ever has the K.S. with him, either seller, the buyer or any third party, when he declares the deal as valid, then it becomes valid for all intents and purposes, whether or not the other person come to know bout it. However if both had the K.S. then declaration by one party will not be taken as the finality of the deal.
PROBLEM:- If the man having K.S. cancels the deal, then there are two possibilities, if he declares cancellation by words of mouth, then the other party should know within the time limit. If the other person does not know at all about it or comes to know after the time limit, then the cancellations is not valid which means that the deal must be finalised.
PROBLEM:- If, one who has the K.S. declares the deal as valid (in order) or cancels his K.S., then no K.S remains operative and the deal will be compulsorily finalised.
PROBLEM:- If the person having the K.S. dies within the time limit, the K.S. becomes null and void. It can not be transferred to his heirs, because there is no inheritance in the K.S.
PROBLEM:- If the buyer has the K.S. then unless the time limit of K.S expires the seller can not demand the cost/price> However if the buyer has given the cash, then the seller will have to hand over the article to the buyer. If the seller has handed over the article, then the buyer will have to hand over the price, but he has the right to annul the deal.
PROBLEM:- When the buyer exercise his authority by using the object of sale in order to its usefulness (on final deal) and the part of test in such that he could also on any other thing which he has no possession, then in that event the K.S. (the power of condition) will not lapse. If his method of testing was not all necessary or this test on any thing not in his possessive right is not permissible then in the latter case his power of condition (K.S) will be invalid, it will lapse.
PROBLEM:- When some definite conditions are made prior to finalising a deal, which are not predictable, then the deals become invalid. For example when buying a she-goat if a definite milk is demanded from her or that it should be pregnant, then this deal will be invalid. However if the buyer demands that it should yield good quality of milk, the deal will be in order.
PROBLEM:- If among some things, the buyer wants one among them, he can select any piece of his choice. This is known as Authority / power of selection, and in Shariat terminology it is called `Khaya'r-e-Ta'een'. For this there are certain condition: (1) The buyer should fix/select any one thing for purchasing and not all the things in the lot. (2) From two or things he may select any one, but not one among four or more things. (3) The buyer should be told to pick up one (thing) which he likes. (4) The time limit for this choice should be maximum three days. (5) This power of fixation or selection should be confined on tare or high priced and not in things the like of which are available.
PROBLEM:- After fixing the price, the question of compensation arises, when the customer takes the thing with intention to purchase and it is damaged en-routes. Other wise not.
PROBLEM:- Suppose a customer takes a piece of cloth from the shopkeeper on condition if it is found suitable but the piece of cloth is lost. In this case no compensation is due, However if he takes the cloth saying if it is found suitable, he would pay Rs.10 as its price. If the said piece of cloth is lost, the customer will have to pay the compensation(because after fixing the price, the thing has become the property of the customer.
KHYAAR-E-RUYET (RIGHT OF INSPECTION).
Some times it so happens that after purchasing a thing without seeing it, it is found unsuitable. In such a situation Shariat has authorized the buyer to cancel the deal. This is known as KHAYAAR-E-RUYET (K.R). We may call it as the Authority of Inspection.
PROBLEM:- When a thing (packed or invisible from out side) is found unsuitable after inspecting it or not according to standers (mentioned by the seller) the customer has a right to cancel the deal.
PROBLEM:- Even if the customer expresses his intention to purchase it, without seeing or inspecting it and the thing is found unsuitable, he has still the right to cancel the deal, because has not exercised his right of inspection.
PROBLEM:- There is no time limit for K.R. (Khaya'r-e-Ruyet or right of inspection) after which this right can not the exercised, because this authority or right comes in force only on and after inspection of the thing under deal, and this exists unless and until, the customer personally or through some one after having inspecting the thing expresses his willingness or otherwise about it.
PROBLEM:- The K.R. or right of inspection can take place at four places. (1) In the out-right purchase of the things so chosen (2) Through the monopoly or the holder of monopoly (proprietor) (3) In division or distribution and (4) Compromise or on agreed formula for disposal of a particular object/thing. (Note: There is no right of inspection in respect of a thing received by way of compromise in the matter of Qisas (the Law of Retaliation). Similarly, there is no K.R. un respect of bed, liability, or in cash dealings in currencies. However\ever inspection is permissible in respect of articles of gold and silver.)
PROBLEM:- The buyer sells a thing which he has not seen e.g. a thing received in inheritance (Mira's). This deal is correct. But if on seeing the thing he wants to cancel the transaction, this he can not do.
PROBLEM:- In respect of thing which are received through division /distribution, all the possible rights can be exercised, namely, Khaya'r-e-Shart (or K.S.) (right of imposing conditions), Khayare Ruyet (or K.R.)(right of inspection) and Khay'ar-e-Aib (or K.A.) (right of disclosing/discovering defects) we shall deal this last named power/ a right after present the Khaya'r-e-Ruyet.
PROBLEM:- The deal of thing purchased without first having seen it can he canceled, because this deal was not binding on the buyer.
PROBLEM:- If the buyer takes possession of a thing (of sale), and expressed his willingness to retain it, or some defect takes place afterwards or he handles the things resulting some defect which can not be removed, in all these conditions the right of inspection (K.R.) can not be revoked, it has lapsed. He can not cancel the deal.
PROBLEM:- IF the deal of a thing which the holder has taken in his possession sells it to another person who returns it after having seen defect in it, or takes it back after having kept it as pawn or breaks the monopoly, then the changes taking place on account of different handling aspect on it, the power of inspection has already lapsed can no be revived.
PROBLEM:- If some part of the article of sale is damaged, though it may be serious nature or a slight one, the right of inspection (K.R.) becomes is lost.
PROBLEM:- Unless and until the buyer suspends or withdraws the right of inspection, the seller can not demand the price.
PROBLEM:- If the buyer dies after making purchase, his heirs shall not have the K.R.(Khyar-e-ruyet) or the right of inspection which means they do not have the right to cancel the deal.
PROBLEM:- If some change takes place in the article after the deal has been finalised, the buyer retains the right of inspection. But if the condition is the same as it was at the time of purchased then the K.R. (right of inspection) does not exist. How if at the time of agreement it was not known to the buyer that the thing he is buying is the same which is with him now, the-right of inspection will be available to the buyer.
PROBLEM:- The seller says that the thing which had sold is the same and no change has taken place in it, while the buyer says that the change has occurred, then the buyer will have to prove his stand by producing witnesses. IF the buyer does not produce witnesses, then the state of the seller, on oath, will be accepted.
PROBLEM:- In the cancellation of deal on the basis of exercise of the right of inspection (Khay'ar-e-Ruyet) the decision of the Qazi is required nor the willingness of the seller.
PROBLEM:- When the deal is rejected by the buyer on account of K.R. (khay'ar-e-Ruyet), the seller should be informed of this, otherwise he will be under the impression that the deal has been finalised. This will now necessitate finding another customer. In the absence of the required knowledge, he will not search a new customer and might suffer loss in the end.
PROBLEM:- Inspection/examination of the object of deal does not mean that it should be seen in full and no part should not be left unseen. The Ruyet (looking into) inspection means that the essential part should be seen, for example in respect of the things which are given in measurement or by weighing only a sample thereof should be enough. However in respect of things which are packed or stuffed in bags, the buyer has a right to revise the deal if he finds some defects in quantity/quality on examining the packed contents.
PROBLEM:- The buyer says that the things is not like that which he had seen and the seller says that the thing is the same which he had sold. In this state of dispute the opinion/decision of learned honest men should be accepted and abided by.
PROBLEM:- A man purchases a thing without seeing it and deputes another man as his attorney who sees the thing and accepts it. In the circumstances the deal becomes final and if he disapproves it, then the deal can be cancelled.
PROBLEM:- The buyer sends some one as his emissary to the seller to see the thing and take its possession. In this case the seeing
/observing the thing by the emissary is not enough, the buyer has still the right to cancel the deal if he so desire on seeing the thing himself. If the emissary/vakil had seen the object of sale before being appointed as such. Now if the vakil approves the thing, the right of acceptance goes to him and he can finalise the deal.
PROBLEM:- The sale and purchase by blind man is both valid. If he sells something, he will not the right to cancel the deal, however, he will have this right if he buys something. He can examine the thing by touching its sides. IF he accepts it, then his right of rejection lapses. Similarly things which need tasting and smelling the deal will become final if he approves by lasting or smelling. A blind buyer can also depute some one on his behalf, in that case the right of acceptance is transferred to him and his decision will have to be accepted.
PROBLEM:- If the deal takes place by exchange of one with another (of different nature, for examples book and cloth) then both will have the right of deal as both of them are seller and buyer at the same time.
KHAYAAR-E-AIB (RIGHT OF DEAL IN CASE OF DEFECT IN THE THING)
This part deals with aspects of transaction of things in which some defects are detected after the matter has been decided and the thing concerned passes on to the buyer as new owner. The presence of defect in the object of sale has its effect on the price and utility of the thing. Here some aspects are mentioned in the light of Laws of Shariat in this behalf.
If the thing is sold without pointing out the defect, then the buyer has a return the thing to the seller when the defect comes to his knowledge. This exercise of right is known as Khay'ar-e-Ai'b (Aib in Arabic is meant defect, flaw, fault etc).
For the exercise of this right it is not necessary that the defect should be indicated at the time of deal (transaction). In any case the buyer has a right to return the thing, when he notices the . If he retains the thing full price will have to be paid (or the thing should be returned). It is not permissible that the buyer should insist to retain the thing on reduced price.
PROBLEM:- The defect should be such that in the market the price will be less (than originally demanded).
PROBLEM:- To hide the defect in the thing is har'am and a major sin. It should be mode known before its deal to any customer.
PROBLEM:- On the basis of Khay'ar-e-Aib (we shall refer it as K.A. for short) the buyer becomes the owner of the thing, but right of possession does not becomes his legal right (as the issue of defect remains unresolved) and the right of inheritance is attached to it. This means that if the buyer dies without knowing the defect, but the same (defect) is detected by his inheritors, then on the basis of K.A. (khya'r-e-Aib) the inheritors have the right to cancel the deal.
There is not time limit for exercising K.A. So long as other circumstances which prevent its return, are brought to light the right to cancel the deal remains with the inheritors of the deceased.
PROBLEM:- The prospective buyer comes to know about the defect in advance. As such he can cancel the deal without recourse to litigation. However if he has taken possession of the thing, then the deal can not be called off without the consent of the seller or under the orders of (Qazis) court.
PROBLEM:- For the exercise of right, under K.A. the following conditions should be fulfilled.
(1) The defect in the object of sale was there at the time of transaction or it was detected before the buyer look its possession. It means that if the defect after its possession by the buyer, no right of cancelling the deal can not be exercise.
(2) If the buyer takes possession with the defect in the thing, the same (defect) should remain. If the defect disappears (for any reasons) the right under K.A. lapses.
(3) The buyer should be unaware of the defect before striking the deal or at the time of taking possession (because if he buys or takes possession with due knowledge of its defect, no right under K.A. can be claimed).
(4) The sells has not absolved himself of the responsibility of the defect, because if he owns it, the buyer can not claim recompense under K.A.
(Note: The problems; relating to defects or otherwise in the habits of pet animals, birds etc ahve been left over, because they are of trivial nature and do not come for consideration under the Laws of Shariat - Translator)
PROBLEM:- The house which is generally regarded as haunted or carry ill-omen can be returned, because this becomes a known defect and the people normally do not like to purchase such a house. It is a matter of disbelief and not an inherent natural defect, but it becomes a "defect" from transaction point of view.
PROBLEM:- The basket of fruits if found stuffed with dry grass etc at the bottom, generally not seen, can be returned. The deal has a (moral) defect.
PROBLEM:- The Holy Quran or any book with misprints, or dim impressions can be returned.
PROBLEM:- IF after knowing the defect the buyer makes any kind of the thing as a matter of right of possession, then the right of cancellation on account of defect will not be permissible.
PROBLEM:- If a amn buys a goat or cow and it milk is used when the defect in the animal comes to knowledge, he can not return the animal. However he can claim damage. Similarly if the buyer milks the naimal knowing the defect in the animal. He can not return the animal because milking the animal knowing the defect amounts to willingness to retain it.
PROBLEM:- The man purchases piece of cloth for his minor child and it is cut to size, when defect in the cloth comes to notice. He can neither return the cloth nor demand payment of loss. However if the cloth is meant for the adult child, then he can demand payment of loss/damage.
PROBLEM:- If some new defect comes up in the article of sale when it is in the possession of the buyer, then whether the defect was on account of usage by the buyer of some natural calamity he can not return the article, however he can get the damage. And if the defect was produced by the seller, even then he can not return the thing, but he can receive payment for both the defects.
PROBLEM:- If the thing is such that on account of defect it is to be return (to the seller) but there is cost involved in its return, in this case the cost etc will have to be paid by the buyer.
PROBLEM:- If the object of sale is subjected to additional treatment, for example, if unstitched cloth is sewn, an uncultivated land is planted, or the object itself is lost destroyed, in all these cases, only the claim for damage is permissible, but not return, even both the seller and the buyer agree on its return. The Qazi too can not enforce its return by a decree.
PROBLEM:- An egg if it is found dirty filthy on breaking, it will not be returned, but it will be replaced or get the money back, because a rotten egg is of no use. This also applies to fruits, vegetables etc. Which are thrown away when they are of no use.
PROBLEM:- The buyer brings back the naimal as it is wounded (and he can not keep it), the seller says the wound is another one, the earlier wound has been cured and healed. In this case the statement of the buyer shall be accepted.
PROBLEM:- While offering for sale any thing the seller declares himself not responsible for any defect, the sale will be in order and if the buyer accepts the thing he can not return it or claim any damage for its defect if it is noticed afterwards.
PROBLEM:- if the seller warns the buyer to accept and buy a thing at his own risk for any fault, existing in it or noticed later on, the buyer on purchasing the thing, can not claim any damage or return it except with the consent of the seller and on terms specified by him.
PROBLEM:- The buyer wants to return a thing, but the seller suggests to accept some amount and retain the thing. The buyer accepts. This compromiseable is permissible. On the other hand if the seller refuses to take back the thing and demands some money for the deal or the buyer himself offers money to the seller for accepting back his own article. Any compromise thus reached will be invalid and the amount so offered and bribe and interest which is haram.
PROBLEM:- In order to know the difference between the prices of a thing when it free from damage or defect and when the damage has occurred, the expert opinion will be required to settle the issue. The difference between the prices can be claimed by the buyer from the seller.
PROBLEM:- A man purchases a a piece of land and makes it as a masjid. If some defect in the land is detected, it can not be returned. However damage so occurred can be claimed. Similar is the command in respect of the land made `Waqf'. Here too the damage if any noticed in the land can be claimed, but the land will not be returned.
PROBLEM:- A thing has been purchased with excessive fraud (Ghaban-e-Fa'hish) involved in it. It may have been done in either, the thing can be returned. If however the fraud is of a minor nature (known as Ghaban-e-Yaseer), the thing can not be returned. There are three kinds of fraud, (1) some time the seller deceives the buyer (2) sometime the buyer deceives the seller, while (3) the broker or agent deceives both or any one of the buyer or the seller.
In any three cases it the fraud is of excessive nature `Ghaban-e-Fa'hish' (beyond the scope of bearing), he can return the thing. If the fraud has been committed by a stranger, the thing can not be returned.
PROBLEM:- When a thing is purchased with Ghaban-e-fa'hish, but the fact of fraud is noticed after sometime of its use by the buyer, he can return the thing after discount of the usage and get back the balance of the price paid by him.
UNLAWFUL DEAL (BAI-E-FA'SID).
The Holy Prophet (Allah's grace and peace be upon him) has said, `Surely Allah forbidden (as haram) the Wine and its price (deal, selling and buying), the dead (corpse) and it price, and the hog (swine) and its price' (Ibn Majah). It is reported in Bukhari and Muslim that the Holy Prophet (Allah's grace and peace be upon him) has forbidden the deal in the fruits unless they are fit for use, he has forbidden both the seller and the buyer. There is Hadees in the Saheeh Muslim forbidding the sale of date palms unless they become red or yellow (on ripening), the sale of the grain while still in the plant, unless the ear of corn becomes white and there is peace after some natural calamity. It is reported in the Saheeh Muslim that the Holy Prophet (Allah's grace and peace be upon him) `If you sell fruits (on the trees) and some calamity occurs, then it is not permissible for you to take any thing from it, it will be an unlawful grabbing from your brother without payment in return. Tirmizi has reported from Hakeem bin Hazam saying the Holy Prophet (Allah's grace and peace be upon him) has forbidden me from selling a thing which is not with me. It is also reported in The Tirmizi when a companion came to the Holy Prophet (Allah's grace and peace be upon him) and said, "O Prophet of Allah, comes to me to purchase a thing which is not with me, I settle the deal, I go to bazaar, purchase the thing and give it to the customer. He said not to do dealing in a thing which is not with you (as possession).
The Holy Prophet (Allah's peace and grace be upon him) has forbidden two deals in one deal, meaning thereby that the cost of a thing if purchased in cash it is so much and if on credit the cost will a little higher, or in other case when a man sells a thing on a certain price and he tells the buyer to his thing on a certain price.
The Holy Prophet (Allah's grace and peace be upon him) has said, `Loan transaction (Qarz-o-Bai'e) is not Halal (which stipulated a deal in such a way that the seller asks the buyer that he (seller) is selling his thing at such a price on the condition that the latter (buyer) would give him a loan. Another situation in this behalf (two dealings in one deal) is that a man gives another man a loan and sells his own thing at the hand of loan taker at a higher cost. And in the transaction, two conditions are not halal (permissible), and the profit on a thing is not a halal which does not carry guarantee and the selling of a thing is not permissible which is not one's property (with rights of possession). (Tirmizi) Nisai and Abdu Dawood.PROBLEM:-In a situation where a rightful participant in the deal is absent or the thing itself is haram or impermissible for deal, under the laws of shariat. The example where the right participant is not present is that either a minor child or a lunatic settles a deal which is not acceptable from the Shariat's point of view. As for the (permissible) thing being absent, it is in respect of dead body (corpse, a carrion), wine or a Hurr tree person (not a slave) whose sale is not permissible, or the situation where the person or the place itself is not conducive to a permissible sale.
PROBLEM:-The article means for sale or its cost, if any of these does not ahve religious sanction, it dealing is impermissible, for example the dead corpse (carrion) blood or the Free (man or woman, not a slave) their deal is haram in any heavenly religion. If any of these is worthy of deal in some religion while prohibited in any religion, if they are taken as article of transaction then the deal will be invalid or if is taken as a cost or price then the deal will be totally wrong (Fa'sid) for example, the wine which is haram in Islam, while in christianly it was taken as a commodity. It therefore in any deal the wine is regarded as a commodity to be used in exchange of another commodity then the deal / transaction will be impermissible or Haram.
PROBLEM:-Asset (in Urdu m'al) is a thing to which human inclination is attracted, which is exchanged in business transaction and others are prevented to grab or extent it, which is accumulated for use in time of future needs. There fore a lump of clay which is stationary at a place, it will not be an asset and it transaction will be invalid, however when it is transferred to another, it will taken as an assets or commodity and a business of it will be valid.
PROBLEM:-By dead body corpse, carrion (in Urdu, Mur'dar) is meant that animal which is not slaughtered, whether the animal naturally, or some one strangulated it or some other animal killed it. However Fish and Locust are not included in `murdar' because no slaughtering is possible with them.
PROBLEM:-There is no deal in any thing which does not exist, For example in a two storied building under possession of two different persons on each floor. If purchaser the upper portion collapses while other structures remain. Now, if the owner of the upper floor wants to dispose of his portion, he can not do so, the upper portion is now non-existent. If his intention is sell the occupancy or building right, this is also not permissible because the deal/transaction of a thing/article which physically exists. However the upper house exists (in any shape or condition) a deal of it will be valid.
PROBLEM:-Water lying in the well or canal can not be sold out. However when it is filled in pot or pitcher, it becomes the property of the holder. It can be sold as a commodity.
PROBLEM:-By collecting the rain water, a person becomes its owner. he can have a deal with it. The water collected in the yucca reservoir can sold, if fresh water in not forthcoming in to.
PROBLEM:-In a stock of things meant for sale some part is present and some part is not seen, like the flower beds, in such a case the sale is not valid. IF however the whole stock of flowers/beds are sold, then the deal is valid.
PROBLEM:-The principal point in a deal is that the thing meant for sale should belong to the specified category, any variation in quality or category of things will render the deal as impermissible. This is particularly applicable to the deal of bet animals or precious stones and gems. In such case the buyer is authorized to accept or reject the deal.
PROBLEM:-An article of `WAQF' when mixed with another article of NON-WAQF' brand for a business deal, the deal of the NON WAQF article is right and of the WAQF will be in valid. If MASJID in combination with any other article of any nature, the deal of both the categories will be wrong.
PROBLEM:-Two men sharing a house as owner-partner if one of them sells the entire house to the other, then the deal of his share is valid and the price of that share will be given to him but not of the entire house.
PROBLEM:-Two men are sharing a house or a piece of land. If one of them sells a part of the land, its deal will be invalid. However if he sells his own share of land, then the deal will be lawful.
PROBLEM:-IF the entire village having Masjid and graveyard is sold out, then the deal with the exception of the masjid and the graveyard will be lawful, whether or not the mention of these two places has mentioned in the deal. Even otherwise these religious structures/places are exempt from sale as a rule. (The management of these places can however be changed after the deal is over - Translator).
PROBLEM:-The business deal of human hair is not permissible and to make use of these hairs in others ways is not allowed, for example to make plaif of human hair which the women put on their head is "haram".
PROBLEM:-The Holy Hair (Moo-e-Mubarak) of the Holy Prophet (May Allah's grace and peace upon him), in possession of any person can be gifted to another person in exchange of another gift (not by way of sale) is permissible. To receive blessings from the Moo-e-Mubarak to drink and apply the washed water of the Moo-e-Mubarak on the eye-lids is recommended in the Ahadees of the Holy Prophet (Allah's grace and peace be upon him).
PROBLEM:-The invalid deal (known in Shariat as Bai-e-Baitl) does not imply the possession of the article of sale by the buyer if he gets it by way of purchase (which is declared unlawful-batil). So long as he remains in possession, it will be as a trust (amanat).
PROBLEM:-To include conditions in the agreement of deal as a matter of necessity is not harmful (for example, imposing conditions on the seller to arrange possession to the buyer of the article of purchase or the condition asking the buyer to arrange personal guarantee of the payment of the price of the article of purchase or of placing some like prices article as a pledge (pawn) to ensure payment, provided the person who is appointed guarantor (Zamin) is present in the same sitting time. In these circumstances, these extra precaution are permissible. However if he guarantor (Zamin)refuse to act as such then the deal will become faulty (Fasid). If the buyer refuse to agree by these assurances the seller has the right to cancel the deal. Similarly the buyer can ask the seller to make so and so as the guarantor who will facilitate possession of the article or if any right accrues from the article, the guarantor will get it accepted and paid by the seller. This is also permissible. The guarantee as declared by the owners/manufactures of the articles of sale which procedure is becoming popular in the modern business deal is also valid. However all such conditions of guarantee which are not valid from the shariat point of view (however attractive) will make the deal as totally invalid and unlawful.
PROBLEM:-The conditions of the following natures imposed while transacting a deal are unlawful, namely,
The servant sold will serve the seller for one month.
The seller of the house will stay for one month.
The buyer will give so much amount as loan or give so and so
thing as a present.
The seller will keep the sold article will not vacate possession for one month.
In all these above mentioned conditions the business transactions will not be lawful.
PROBLEM:-There is no mention of the price in the business deal, but it is said that the price current in the market will also be its price. This is not permissible or, if it is said that there is no price (as a deal) this is also not valid, because there can be no deal without the price.
PROBLEM:-The sale is cash of he fish which is still in the pond or the river is not valid as these are in the possession (milkiyat) of the seller. Or the same (fish) in this condition (not yet caught) if sold in exchange of articles other than cash, this is also not valid, because (in both these cases) the possession is not acceptable.
PROBLEM:-The sale of fish caught from the river and put in a ditch from where it can be caught without any help or thing, is valid, because its possession it recognizable. If however foreign object is necessary to remove the fish from the ditch, then its deal will be valid only when its possession is given to the prospective buyer. If the fish comes of its own in the ditch which was prepared for this purpose, then the fish will become the man's property, others can not take/claim it. If the ditch was not dug for this purpose, then the fish falling in it will not that man's property. However, if he closes the outlet of a ditch in which fish have floated from the nearby pond, he becomes the owner of the fishes that are blocked in the pond. The deal is this fishes will be permissible. Similarly if some fleeing quadruped like deer, slag fall in the ditch dug for any purpose the animal becomes the possession of ditch digger others can not claim it. However the ditch was not dug by any one, then the animal falling in it becomes the property of anyone who can by hand on it, suppose a string net is spread in the open for drying it and some bird gets caught while flying near. Then if the net was spread for the purpose of catching the birds, the birds caught in it belong the net owner. Otherwise laying hand on them can carry them home. If the birds caught in the net escape in the open, then any one catching them will own them. Similar is the command in respect of hunts to made by hunting dogs and hawks.
PROBLEM:-If a stray bird lays egg/young one after self hatching they will be owned by the man who has make this place for this very purpose. Otherwise any one how finds them would be deemed the owner.
PROBLEM:-If some animal of hunt by chance comes into the house and the man inside shuts the does, then it becomes his. No other person can take it.
PROBLEM:-To give ponds lakes etc on contract for catching fish (hunting) is not permissible.
PROBLEM:-Fish caught in the net and sold out as a routine. The fisher catcher can not claim any pearl recovered from inside any fish nor can he claim as a separate article of sale. Such a claim and the sale there of are both unlawful.
PROBLEM:-The agricultural farm in which the crop is not ruipe the deal there of is of three kinds namely, (1) the buyer will cut the crop forthwith, (2) he will have it grazed by his animal (3) he takes it on the condition that till its ripeness he will leave the field as it is . In the first two cases, the deal (purchase) by the buyer is permissible, while in the third case, since it is profitable for the buyer, the deal will be irregular.
PROBLEM:-To sell the fruits ( on the trees) before they are even visible now means an irregular and faulty deal. However if the fruits have appeared (on branches) although they are not yet of use, the deal will be permissible, but the buyer must pluck them forthwith. If the condition has been settles that so low as the fruits become ripe, they will remain on the trees, then this deal is faulty (Fasid). OR if the purchase has been made without any condition or if the seller has agreed to allow the fruits on the tree till they are ripe then the deal will be in order.
PROBLEM:-If cow, goat or hen have been let out to another man on the condition that he will feed and nourish them and their young one's and chickens will be divided half and half between them, such a deal is not in order. The young ones and chickens belong to the owner of the animals and the other man will get the cost of feeding and care taking the animals at the rates that are extant at the moment.
Similarly if a man offers his land to plant trees on the condition that after a stipulated time, they will divide the trees and fruits equally between them. This is also irregular. The trees and fruits on them belong to the owner and the other man will get the price of the trees at the rates, which were current when the tress were planted, he will also get the wages of the labour which he rendered in this connection
PROBLEM:-The sale of the skin of a carrion (murdar) in unlawful when it is not tanned. And if it is tanned, its use and sale is permissible.
PROBLEM:-The sale of unclean (napak) edible oil is permissible and it can also be used for other purposes except cooking and eating. But it is necessary that the buyer should be informed of the oil being impure and unclean, so that he may use it for cooking. Even otherwise impurity is a blemish or fault of which one should be informed. Unclean and unholy oil can not be used in oil lamps in Masjid, but it can be used at home.
PROBLEM:-The fat of a carrion is prohibited for sale and derive any benefit (money) in any way from it.
PROBLEM:-The tendon, hairs, bones, quill, beaks, hooves and nails of a dead body can be sold as well as made use of. Similarly the ivory and bones of an elephant can be sold and made use of for any purpose e.g. decoration pieces, bracelets etc.
PROBLEM:-Iron and brass finger rings which are forbidden to men and woman are also forbidden for sale. Their sale is makrooh (undesirable). Similarly the opium is also forbidden for use and sale especially at the hands of those who are addicted to it, because it amounts to encouraging them in their notorious habit.
PROBLEM:-The thing of which deal has been settled but the full price has not been received can not be purchased at a lesser price from the buyer, even if the market rate of it has dropped.
PROBLEM:-A man purchases a thing but he has not yet taken it possession. If he proposes to sell this thing along with another thing which is his own, the deal will be valid in respect of the thing of which he is the owner.
PROBLEM:-A man offers his portion of the house for sale to another man, but the seller is not aware of the portion of the house offered for sale, while the buyer knows, the deal in this case is valid. In case buyer does not know what portion is under deal then the deal will not be in order even if the seller knows.
PROBLEM:-After entering in deal of a thing with a man to sell it to another person is haram and extremely false, If the first deal is cancelled, even then the second deal will not be in order. However, if the first buyer has taken possession of the thing, then for the second deal his consent and permission is necessary.
PROBLEM:-The deal in which the quality of the thing and its exact price are not clear, is not valid, especially when there is a possibility of confusion and dispute afterwards. However if the deal is clear and mutually agreed, then there is no harm in finalising it.
PROBLEM:-The command in respect of an invalid deal is that if the buyer takes possession of the thing with the permission of the seller, then he becomes the owner of thing, but so long as he does not possess the thing he will not be regarded as the owner. The permission of the seller may be distinct case the possession and ownership is valid.
PROBLEM:-In a faulty and irregular deal (Bai-e-Fasid) it is incumbent on the buyer not to take the thing in his possession. It is also necessary for the seller to check the buyer to do so. To cancel the irregular deal is the duty of every one concerned with the deal. If the possession has already been made, it is the moral duty of the buyer to cancel the deal and return thing. If such as situation has arisen where the thing concerned has been lost and damaged to an unrepairable condition, then the like of in utility or in price thing must be replaced. I f the issue of returning the price comes up for settlement, then the price of the thing on the day of deal will have to be paid.
PROBLEM:-To carry out the deal under compulsion or unlawful mean amounts to faulty deal and it must be declared invalid. But the cancellation of the deal is not incumbent on the man who has been compelled to undertake the deal. But it is binding on the man who has used compelling tactics.
PROBLEM:-In an irregular and faulty deal if the buyer takes possession of the thing without permission of the seller, then it will neither a valid possession nor ownership nor any usage of the thing.
PROBLEM:-In an irregular deal, the buyer sold the some thing with another man or gifted to some one as a gift or did any thing which prevented the return or come back in possession of the buyer (original one who bought the thing in the first instance) the whole process (which deprived the real buyer to regain possession of the thing in the deal) made the deal as faulty and it can not be cancelled or withdrawn..
PROBLEM:-If the deal was done under compulsion or unwillingness of the buyer and after gaining possession, makes some kind of usage with the thing, then every thing done with the thing will be taken as invalid and the seller still has the right to cancel the deal.
PROBLEM:-The deal can be cancelled even if the thing is given on hire to some one.
PROBLEM:-IF any one of the buyer of the seller dies, his heir has the right to cancel the deal as the successor to the deceased and using the latter's right in his behalf.
PROBLEM:-If the irregular deal is cancelled, then the seller can not take the thing back unless he returns the money, either the some money which he received or its equivalent.
PROBLEM:-If the land id purchased through the irregular or faulty deal and the buyer plants trees on it or builds a house there on, in this situation the deal can not be cancelled and the buyer will have to pay the price of the land.
PROBLEM:-A legator (i.e. the person from whom an inheritance is derived, in Urdu `Muris') had received the property etc. through unlawful (haram) means, and now the some has come in the possession of the rightful heir (waris). If he comes to know that the property belongs to so and so person, then it is moral responsibility to hand over the property to that person. If he does not know who the real owner is, then he should give it away as a charity on behalf of the (unknown) owner.
PROBLEM:-It is not necessary for the buyer to enquire from the seller that the thing under deal is halal or haram. However if the seller has a bad reputation in his dealing, then it is necessary to check. If the thing is halal, he should finalise the deal, otherwise he should abstain from it.
PROBLEM:-After purchasing a house and settling the deal if some money or any other costly thing such as jewelry or ornaments are discovered then the same should be returned to the seller, as it is demand of moral and hones dealing.
UNDESIRABLE (OR MAKROOH) DEAL
The word `makrooh' literally means thing which is detestable or undesirable or that which arouses aversion. According to laws of Shariat any deal or transaction which evokes aversion is forbidden and one who carries out such a seal commits sin. This deal is purely sentimental depending upon the moral or religious reaction. Legally such a deal is not invalid and as such it can not be a part of agreement declaring it unlawful. There at the lower level it is below faulty or irregular (Fasid). Some scholars of Islamic Jurisprudence (Fuqaha) are of the view that a `makrooh deal' should also cancelled like a faulty (Fasid) deal. The difference between `Fasid' and `Makrooh' deal is that in the case of former (Fasid) if the partners in the deal do not cancelled it (Faskh), the Qazi can decree for its annulment and in the latter (Makrooh) deal the Qazi can only emphasis the moral decorum for its cancellation, but he will not declare it as null and void in the legal sense.a
PROBLEM:- Withholding or hoarding food grains with evil intentions to sell it at higher and exorbitant rates in the days of scarcity due to drought or floods, cyclones etc (In Shariat Terminology known as Ehtikar) is forbidden and an act of severe divine displeasure and*wrath.
PROBLEM:- To store and hoard grain produce of one's own land is not hoarding in the penal sense nor it is forbidden. However if the intention behind hoarding is profiteering and earning immoral riches, then this very hoarding becomes curse. If the hoarders are intentions and activities become known and the people are in dire need of food grains facing near, famine conditions, then in such a situation the Qazi can force the hoarder (s) to release the food grains for the people or suffer hard penal punishment in default.
*: According to Hadees Sharif, the ho-ardor of grains, with evil intentions to sell it higher rates has been condemned as one on whom curse of Allah befalls. The Holy Prophet (Allah's grace and peace be upon him) has said that the hoarder shall be afflicted with abdominal deceases such as leprosy, extreme poverty. The angels and the righteous servants send curses on the hoarders.
Ehtikar (hoarding) can also be in eatables, such as dry fruits as wells as the grass and fader which are the food meant for the cattle and other pet animals. Fixing of high rates is not the prerogative of selfish man. Allah the Almighty cause abundant growth of food grains which means the prices of these commodities
must be within the reach of every needy person. High prices do not enable the poor people to purchase them.
PROBLEM:- Fixing of prices as legally binding by the government
agencies is not correct. The government or its functionaries can however advise to the dealer in food grains to adopt a reasonable standard of food prices, especially in circumstance when the deals / land lords have fixed exhortitave prices of food grains, which are beyond the reach of common man.
UNAUTHORIZED INTERFERENCE IN DEAL (BAI-E-FUZ'ULEE)
This is a intricate kind of business behaviour when some one not directly involved in the transaction happens to possess powers to interfere in the object of transaction in the rights of another person without the permission of the latter. Such a person is nicknamed as FUZ'LEE in the business deal. The strange fact is that this kind of self indulgence becomes regularized at the instance of the person who can declare it as in order (Jaiz). For the sake of common understanding we shall call the self indulging person as FUZ'ULEE and the person who declares/permits in indulgence (Tasarruf) as in order MUJAIYIZ (one who declares as Jaiz) correct, in order. Problems narrated under the above caption are limited in number and complexity. There fore these un-usual terminologies will not cause undue embarrassment.
PROBLEM:- The interference committed by the FUZULI shall become in order if the MUJAIYIZ (the man who can declare FUZULI'S action as correct) declares it as such. But the presence of the MUJAIYIZ is necessary at the time of transaction/deal. If the MUJAIYIZ is not present then the transaction can not be said to have taken place, and as such there is no role for the FUZULEE.
PROBLEM:- To declare the deal of FUZULI as correct it is essential that the object is present on the spot. Otherwise no regularization can take place. It is also necessary that both the partners of the deal namely the seller and the buyer should be on their stand (terms of transaction). If both of them cancel their own deal or if any one of them dies, then the deal not be regularized (through an act of FUZULI).
PROBLEM:- IF the owner okays the deal of the FUZULI, then the price which the FUZULI has received becomes the property of the owner and the money in the hands of the FUZULI becomes as a trust (Amanat) and the FUZULI himself become the vakil.
PROBLEM:- The FUZULI has also the right to cancel the deal which the owner has not so far declare as in order. IF the FUZULI has arranged a marriage deal (Nikah), then he can not annul it.
PROBLEM:- The FUZULI strikes a deal and the Malik or Mujaiyiz dies before okaying, then his inheritors can not okay it. Immediately on the death of the owner the deal no longer remains in vogue.
PROBLEM:- The usurper after taking possession of some property sells it out, but later on pays the ransom or compensation for his unlawful possession. The deal in this manner is in order.
PROBLEM:- If the owner of a goods rebukes the usurper for having unlawful taken away his property. But he condones the unlawful possession and tells the unlawful possessor to sell the thing and give the price to the buyer as a gift. This is permissible whatever the words may have been used for condoning (which amounts to willingness or acceptance) or otherwise of the action of the Unlawful behaviour of an unauthorized person. (Here the usurper may be taken as a FUZULI under the above caption).
PROBLEM:- The FUZULI carries out the deal in the presence of the owner, but the owner says nothing and keeps silence, he also does not reject the deal. This silence does not amount to acceptance of the deal.
PROBLEM:- The thing which has been pledged (kept as pawn) or given on hire, its deal depends upon the permission of the man with whom the thing is pledged or given on hire. If they agree then the deal will be in order. But neither the pledge holder nor the man taking on hire has the right to cancel or reject the deal, not ever the man who kept thing on pledge nor the hirer (taking on hire) can reject the deal (because they don't possession the right of ownership). However the buyer can declare the deal as void subject to approval of the pledge keeper on\r the hire dealer. Suppose then two men had previously cancelled the deal, they the approved it. In that case the deal will be right.
If the intervening conditions of pledging and giving on hire are withdrawn after finalizing the deal, then the original deal will come in force (which has come into picture after the release of hire/pledge). If the hire dealer okays the deal and it becomes valid, even the thing in the dealing can not be taken from the hire dealer unless his dues are paid to him.
PROBLEM:- If the thing which is on hire is given away as in deal to the hirer (on who takes things on hire), if (the deal) becomes effective at once, it does not require the permission of the owner.
PROBLEM:- When a thing lent on hire is sold out and the buyer knows that the thing he has purchased is on hire. He now agrees that till such as the term of hire lasts, the thing should remain with the man, and after the terms comes to an end it should be given in his (owner's) possession. In such a situation he can not demand the return of the thing unless the time for handing over possession comes.
PROBLEM:- A field is let out to a farmer on contract for a fixed time limit. Whether the farmer cultivates the field or not, its deal depends on the willingness of the farmer.
PROBLEM:- A house is let on rent, but the landlord wants to have a deal for the house which the tenant does not agree. To get rid of this situation the land lord enhances the rent and enters in to another contract deal of tenancy. New agreement becomes effective and the old deal lapses.
PROBLEM:- The tenant or lessee comes to know the owner of the thing under deal has sold out to another person. The tenant request the buyer that since he has bought the thing while his agreement or lease is still current, he requests the buyer to allow him to stay till the recovery of rent paid by him is return to him. The new buyer agrees and the deal in question becomes operative.
IQ'ALAH (TO CANCEL OR WITHDRAW ANY DEAL)
PROBLEM:- The process of withdrawing or cancelling any agreement or deal is known as IQALAH (we shall use this terminology in enunciation "problem" under this caption). It may take place on personal move or on suggestion of others. It may include the return (pay back) of the price of thing sold or accept the some on behalf of others, IQALAH is not permissible in respect of Nikah, Talaq (divorce), Utaq (freeing slave or slave girl) and `Ibra' (absolving one self from any responsibility). If in any agreement between two persons, one desires Iqalah, the other should respond agreeably. This is an act of virtue worthy of Divine reward.
PROBLEM:- In `Iqalah' the consent of the other partner is essential. Along a person can not do it. It is also necessary that the Iqalah should take place in the sitting where both the persons are present. The absence of one or his not hearing the terms of Iqalah will not fulfill the demands of Iqalah. (The details of reasons against the legality of Iqalah mentioned in this `problem' are purely hypothetical.)
PROBLEM:- The conditions for the IQALAH are as under,
(1) Both the person of agreement or deal should be willing.
(2) The Iqalah should take place in one and the same sitting.
(3) If Iqalah is in respect of a serviceable object (Bai-e-Sarf) then in the same thing the possession of the two exchangeable things should also be arrange.
(4) The thing/object of sale should be present. The constancy of the price is not the essential condition.
(5) The thing/object of sale should be of such nature the deal of which can be rejected on the pleas enunciated under terms of rights known as Khyar-e-Shart, Khar-e-Ruyet and Khar-e-Aib (we have dealt with these Powers/Rights in details in the forgoing pages under these very specific captions).
(6) If interference of grave nature has taken place with the object on account of which the deal can not be rejected, Iqalah is also not possible and permissible.
(7) The seller should not have gifted the object before its possession by the buyer.
PROBLEM:- The thing (of deal) was present and intact at the time of Iqalah but before it could be returned it was destroyed/damaged beyond recognition the Iqalah to becomes obsolete.
PROBLEM:- `Iqalah' is permissible on the amount which is the price of the thing in question. The Iqalah on an amount more or less than the sale price of the thing will not be acceptable. It may be exact amount in the same currency or its equivalence in any currency as a legal tender.
PROBLEM:- On account of some defect after the sale the Iqalah is done on a lessor amount than the sale price, this is permissible. If however, the defect in removed later, then the buyer can take the amount from the seller which he got less on account of the defect in the thing in the first stage of Iqalah.
PROBLEM:- The soap was sold in fresh condition, but the Iqalah was done when the soap became dry. The buyer will have to give the same (dried) soap, on Iqalah.
PROBLEM:- Iqalah means the cancellation of the original deed between the original seller and buyer, but this Iqalah is the fresh deal for the other person. It means that if on account of the Iqalah the original deal can not be treated as cancelled, then the iqalah itself becomes false and inoperative. For example if after the deal of a slave girl (which not in vogue at the present time) or a pet animal, if a young one is born, then the Iqalah of the slave girl or the animal can not he done.
PROBLEM:- IF a part of the object of deal is destroyed while the remaining part is in contact, then the Iqalah of the remaining part can be done.
PROBLEM:- If the seller receive excess amount from the buyer and if the buyer desires to do Iqalah of the thing, there should be hitch in doing the Iqalah. (The excess amount received by the buyer is reasonable limit as a profit etc) then there is no need for the Iqalah. The buyer can straight away, cancel the deal.
PROBLEM:- IF a thing is given as a (free) gift to some one (in token of love, respect, affection etc) but the man receiving the gift sells as an object of deal, now the man presenting the gift can not get it back.
PROBLEM:- Just as the Iqalah of an object of deal can be done, in the same way the Iqalah of the (first) Iqalah can also be done. The Iqalah of the Iqalah cancels the first Iqalah which means the return of original deal (of sale). However if in `Bai-e-Salam (we shall deal with this later) the object of deal has not changed hands and its Iqalah has taken place then the Iqalah of this Iqalah is not permissible.
MUR'ABAHA AND TAULIAYAH
These are purely Arabic terms of sale with or without gain (profit) respectively in the deal.
PROBLEM:- A thing bought a thing on certain price and offered for re-sale in the market. While fixing the price some time, the additional expenditures incurred on it are also added along with the intended profit or gain. This type of resale is termed as `MURABAHA' or sale with profit or simply SWP.
In the other event where no profit in intended on sale in known as `TAULIYAH' or sale with no profit or simply SWNP.
(Note: By the translator, since no recognized or accepted terminologies are available, an attempt has been make to simplify; the process of deal by assuming self-coned abbreviations. These can be and will be replaced by correct terminologies or their abbreviations).
The thing which comes in possession otherwise than by sale deal, for example, through gift or inheritance or by the execution of Will (wasiyat) can also be disposed by either of he two channels namely SWP (sale with profit) or SWNP (sale with no profit).
PROBLEM:- Murabaha (SWP) is not permissible in the rupee or Ashrafi (recognized currencies).
(Note: The exchange rates of foreign curries are notified by the government of the day. This different from "selling" currencies at one's desire).
PROBLEM:- The basic condition for the Murbaha (SWP) and Tauliyah (SWNP) is that the thing which the first buyer has bought should be such that the buyer Two may exchange with another thing by fixing the price at a profitable level. If the thing can not be exchanged with the desired thing but by paying the price to the buyer of that thing of which he is also the owner. Otherwise the exchange/purchase will not possible, because of difference in the price or quality which demands higher price.
(Note: This is not the exact transliteration of the content under this `problem' at P/319, it is the summarized version of the given details.)
PROBLEM:- In the event of deal with intent of profit, it is necessary that the value nature of the desired thing as a profit be indirectly indicated. For example, the man may to say to another that the thing valued Rs.10/- (cost price) along with the thing he has with him (profit).
PROBLEM:- By the cost price is meant the price at which the deal has been mutually agreed upon. Suppose the agreed price is Rs.10/ but the buyer gone the seller some other thing. In terms of `Murabaha' and `Tauliyah' the deal is in order. If the cost of the thing is more than Rs.10/- the deal is Murabaha and if its cost is equal to Rs.10/- then it Taulia. It will be assumed that the deal is of Rs.10/- Murabaha and not the among which the buyer himself paid.
PROBLEM:- There is a system in the market in respect of sale of a thing on the basis of 10-11 (Deh Yazdah). Which means the seller will receive one rupee profit for the sale price of every 10 rupees or its multiple in the upward order. This formula is applicable if instead of the cash cost price the demand may demand a horse on the 10-11 (Deh Yazdah) is understood. The exact price of the horse should be in the knowledge of the buyer, Then only the deal under this formula will be treated as in order. It is also necessary that the sale price should be declared in the same sitting in which the deal is being struck.
PROBLEM:- The capital or the Principle which is meant to be invested in the commercial back on the basis of Murabah and Tauliyah will enhance if the deal includes profit (Murabaha) and will remain unchanged (no profit) or Tauliyah. In the former case the additional expenditure by way of transport charges, brokerage etc, will be added to the capital.
PROBLEM:- The cost of repair of the house plastering, renewal and clearance, digging of the well etc, all incidental or essential charges including the brokerage etc will be added to the cost price of the house.
PROBLEM:- In a deal of Murabaha, if the buyer comes to know that the seller has committed a fraud or breach of trust and wrongfully enhanced the cost price by adding uncalled for items, then it is open for the buyer to pay the demanded price or reject it out right. The fraud or distrust can be assessed in three ways. (1) The seller himself admits the excess in the cost price (2) The buyer establishes his claim by producing witness (3) The buyer took the oath from the seller.
If in the deal of Tauliyah brand, the seller has committed dishonesty, then the buyer can deduct the defrauded amount from the cost and pay the balance as the real cost, before taking possession of the thing.
PROBLEM:- A fraud comes to notice in the deal of Morabaha and buyer wants to return the thing, but before doing so, the thing is lost or has suffered some damage which makes the return necessary, then in such a case the full cost price of the thing will be necessary to be paid before it can be retained by the buyer. It can not returned nor will be get any compensation for the damage.
PROBLEM:- On a thing received by way of compromise (as different for purchase or gift) there can be no dealing on murabaha.
PROBLEM:- A thing was purchased at a exorbitantly high price which no one is willing to pay. It is (morally) necessary to declare this situation in the deal of Murabaha or Tualiyah nature.
PROBLEM:- The thing is sold by way of Tauliyah but the buyer is kept in hard as to what is actual cost price, This is a faulty deal. Then if the buyer comes to know the price through the people (or any reliable way) the buyer may or may not take. If the real fact can not be ascertained even in the midst of people then there is no way to remove the fault. This is also true in the deal of Murabaha.
THE CHANGE AND ALTERATION IN THE ARTICLE AND PRICE OF DEAL
PROBLEM:- On purchasing an immovable property it is permissible to strike a deal on it, even before formally acquiring its possession, because it is very rare that it shall be destroyed/damaged. If however, such an immovable property (House) or any part of it be such that it may suffer damage, then before getting possession it can not be put on deal (for sale).
PROBLEM:- On purchasing a movable property, it can not be put for a commercial deal before getting possession, but it can be gifted, given in charity, keeping as pawn, lending or for temporary use.
PROBLEM:- IF a movable thing is given as a gift to the seller who accepts it, then the deal is no more remains extant. And if is sold to the seller as a deal, then this deal is not valid. The first deal is still existing.
PROBLEM:- The seller (on selling) himself does some alteration in the character of deal prior to giving it in possession of the buyer, then it can be done in two ways. The first is that the seller does so with the permission of the buyer and the second is that he did without the buyer's permission. If the seller gives the thing as gift, or gives on hire/rent with the buyer's consent, then this amounts to the buyers possession. Or, acting on his own (without buyer's approval) he pawns the thing, or gives on hire/rent or keeps it as a trust and the thing is damaged or destroyed, then the original deal no more remains operative. And if the seller gives it for temporary use, give as a gift or pawned is which the buyer approves, then too the possession of the buyer is established.
PROBLEM:- The buyer tells the seller to keep the thing with some person and he will get thing back later from that person. When he (the buyer) is in a position to pay the amount, the seller does so, this does not mean the possession of the buyer, the thing is still in legal possession of the seller. If that thing is destroyed (in this state) it is the loss of the seller.
PROBLEM:- A thing was bought, but before its possession by the buyer, the seller sells it some person at a higher price, which the buyer approves. Even this is not correct since it was done before the buyer took possession it.
PROBLEM:- Some one purchased things (1) by measurement (2) by weight and (3) by numbers (counting). Now unless is checked in measure, in weight or in numbers, its sale or personal use is not permissible. Or if it is purchased by guess or approximation and the thing in question is present, when the deal is settled, there is no need for its checking. If however these things have been received as gift, inheritance or through execution of a will (deceased's) or was grown in the field, then there is no need even for its measurement, weighing or counting.
PROBLEM:- After the deal if the thing was measured or weighed in the presence of the buyer, then there is no need for the buyer to do so again. However if the thing was measured/weighed in his presence but before the deal was settled or the seller weighed / measured the thing after the deal but in buyer's absence, then it is not enough. It is not permissible, for the buyer to make use of the thing without measuring/weighing again.
PROBLEM:- The seller had weighed the thing before selling. After this, the man in whose presence the thing was weighed, bought that thing without weighing it and struck a deal with it and handed it over to the buyer after weighing it. This is not correct nor permissible as the deal was done before weighing it.
PROBLEM:- If the thing is bought as a package' on a settled price for the entire package. If is permissible. However if the necessary to calculate the total cost/weight etc before taking possession. In case of lump sum right for example in the deal of metal where breaking in pieces is not possible, it is permissible to agree on any process of commercial before taking possession and after paying the cost.
PROBLEM:- Any alteration or change in price usage etc before taking possession if permissible, it can be sold, given in gift, monopoly, sadaqah, or will (wasiyat) every thing byway of Tasarruf (handling, usage) is allowed. Deal in prices is of two natures. Sometimes in terms of down cash, where the deal so does is open to all sorts of manipulatalion by the buyer. The second nature of price is mentioned by way of settled rate where the amount/price is not present. In such a case the thing in deal can not be handled by one except the buyer.
PROBLEM:- The cost of the thing in deal is of two kinds. One is that is fixed by way of weight or measurement where no alteration or manipulation is permissible. And the second norm of price deal is that even after fixing the mode of payment the exact nature of payment remains unsettle or unfixed (as by way of currency in exchange of cash price). For example a thing priced at Rs.100/- does not mean that the entire amount must be in one currency. It may be a 100/- rupee note, 10 notes of Rs.10/- each etc. But in case of a thing priced in exchanged of another object or animal the payable price shall not be other than that particular object.
PROBLEM:- The buyer raises the price for the sake of seller or the seller increase the object of sale. This is permissible. The increase in the article of deal or increase in its price in any shape or form, in the same sitting or after becomes binding. If the buyer repents afterwards as to why he took to raising the price or the quantum of the articles, it will be of no avail.
PROBLEM:- If the buyer increase the price, then to make this increase binding it is necessary that the seller accepts the increase in the same sitting and not afterwards or in another sitting. It is also necessary that the object under deal should be present. An increase after the destruction of the article is not admissible.
PROBLEM:- The seller can refuse the price of the thing for the sake of the buyer, for this the presence of the thing is not necessary. This decrease in the price is permissible even after taking possession of the object.
PROBLEM:- This increase or decrease even if accepted afterwards becomes part of the agreement of deal and it will be take as such for all subsequent processes. The price in any degree will have to remain. The price in total can not be dropped. No commercial deal is valid without the mention of the price howsoever little or reduced it may be.
PROBLEM:- The increase or decrease when made part of he agreement will enable the subsequent Murabaha or Tauliyah (with or without profit) being based in this agreement. The original price or the object will not be taken into account.
PROBLEM:- If the buyer wants to make a reduction decrease in the object, it will be permissible if the object/thing is of merchandise nature, subject to variation in the market that is it is of a fixed nature and not open to change, then no decrease will be admissible.
PROBLEM:- If the seller fixes a time limit for the buyer for the payment of price, after the initial agreement in which no time limit was mentioned then this time limit becomes obligatory for the seller. He can not demand payment of the price earlier then the time limit.
PROBLEM:- The time limit of a repayable deal (loan etc) can also be made subject to certain conditions. For example, A man owes Rs.1000/- to another payable under fixed time limit. The money lender can tell the indebtor that if he pays Rs.500/- by a certain date, the rest 500/- may be paid six months late than the agreed time limit.
LOAN - DEBT.
PROBLEM:- What ever is given or taken as loan should have the like of it (for return in the same commodity), either it may be in the nature of measurement, weighing or counting in numbers. Normally high priced things are not given or taken on loan, like animal, house, land etc. Loan dealing in such commodities is not desirable.
PROBLEM:- The broad principle in this respect is that whatever is proposed to be taken on loan, it should have its like in the market. Things of which similar ones are not available, to give such things on loan is not desirable. The thing which is considered out of the way in respect of giving as loan, if some one gets such a thing on loan he will become its owner as immediately on taking its possession, but it is not permissible for him to derive monetary benefit from it. But if he put is on commercial deal (sale) he will not be committing wrong.
PROBLEM:- Breads can be taken on loan by counting or by weighing. Meat should be taken on loan only by weighing it.
PROBLEM:- Raw or hard baked breads can be given or taken on loan if there is not much different in their cost.
PROBLEM:- To buy ice by weighing is in order. The price of ice purchased can be paid in winter, if it be mutually agreed. If there is any dispute in this behalf the matter can be settled, even with the intervention/decision by the Qazi, if dispute becomes of that acuteness.
PROBLEM:- Loan taken in cash and should be repaid in the same currency. If the currency then in vogue becomes absolute due to government. policy, then the loan should be in the new currency at the exchange rate.
PROBLEM:- In the matte of repayment of the loan, the fluctuation the rates of things taken on loan is of no concern. The loaned commodity should be repaid at the time of repayment, in cash or in commodity as the case may be.
PROBLEM:- Grain purchased in one city should be repaid at the cost value in another city if the lender demands repayments at the latter place if both men happen to he there. The indebter can not argue to repay at the place when grain was taken on loan.
PROBLEM:- IF the repayment of the grain is demanded at the cost of grain is higher, while the debtor wants to repay at his place of loan, then an assurance shall be obtained form the debtor that he would pay the debt at his place.
PROBLEM:- A thing taken on loan becomes the property of the debtor, he can have a deal with the creditor. However if the creditor desires a deal of his own thing (which he has given on loan) will the debtor, he can not do so because he doesn't possess the right of ownership.
PROBLEM:- Loan should not be given to slaves even if he a trader or purchased on writ (Makati'b). Underage, lunatic, insane, nor can the be pressed if given a load and they refuse to payback.
PROBLEM:- A man takes loan in cash, the debtor comes to the creditor with money in hand to repay the loan, but the creditor under some reason till, the man to throw the money in the water which he does. But the real suffer is the debtor because be has not given possession (repayment) to the creditor. And if the seller brings the object of deal to the buyer or the trustee brings the thing of trust (Amanat) to the owner and they say to throw away the things, the loss in these cases will be that of the purchaser and the owner (because each ordered to throw away their object in their position of being the owners).
PROBLEM:- The debtor given something by way of gift or presentation (nazrana) to the creditor. If it is not under the impact of the loan but as gesture of mutual regard, then its acceptance is quite in order. However extra care is necessary in acceptance or rejection of such gifts or even invitation, because a slight inclination of self projection or under objection will not be in keeping with the dignity of such mannerisms.
PROBLEM:- The debtor is a habitual defaulter. If he persists in his non-payment of debt then creditor to take away any thing of the debtor of the kind which was given in loan. He can even snatch away the like things as repayment of his loan/debt. Other kind of thing or things he can not take without the debtor's consent.
PROBLEM:- To hand over a piece of land, on loan in return of a loan received from the land owner, who gives permission to the creditor to tilt and cultivate the land and make use of the produce, is not permissible in shariat. This is a manipulated way of giving things on interest (S'ud, usury)
PROBLEM:- The thing which is permissible to be given on loan, if it is taken on a limit period for use, (to be return in its original condition) if amounts to taking loan, and a thing which is forbidden to be given on loan, if it is for a short period, it becomes a borrowed article (to be return in original)
PROBLEM:- To return a loan given in rupees the debtor gives the creditor higher valid foreign currency telling to have it exchanged in rupee notes, take the amount of his loan and return the remainder to the debtor. If the foreign currency gets lost before being exchanged (from which the creditor would have taken his loan which he could not do) the loss will be tat of the debtor. If the foreign currency was exchanged was lost after its exchange in rupee currency, then the question to be decided will be (1) whether he has received his loan. If he has not taken the loan amount the loss is still that of the debtor. However if he has drawn the amount which was lost, along with the remainder then the loss will be of the creditor. If the debtor handed the foreign currency to the creditor asking to take his amount of loan, the loan will be taken as repaid. And the loss will be of the creditor.
THE INTEREST/USURY (SU'D OR RIB'A)
The Holy Quran has strongly condemned the practice of promoting and adopting usury (su'd or riba) as a means of amassing unlawful riches. The warning is quite formidable as a deterrent. It is said,
"Allah has permitted Trade (commercial deal) and forbidden usury. Those who, after receiving Direction from their Lord, desist, shall be for given for the past. Their case is for Allah (to judge). But those who repeat (the offense) are companions of the Fire. They will abide therein for ever. Allah will deprive usury of all Blessing, But will give increase for deeds of charity. For He loveth not creatures (who are) un grateful and wicked (Surah Baqar(2) : Verse 275-276).
The Holy Prophet (Allah's grace and peace be upon him) has also condemned the dealing with usury in any manner. He said, "The man who accepts usury, who gives usury, one who writes the document on usury and those who stand witnesses to it, are all condemned as accursed." He has also said that though superficially the usury/interest gives increase in the wealth but in consequence and in the longer run it cause diminution/decrease in one's assets.
PROBLEM:- Usury in all forms in absolutely haram and one who does not believe in usury being haram is kafir and one who knowingly as such does any sort of dealing involving usury is Fasiq (transgressor) and condemned as a witness. In an agreement of mutual deal between two (party/person) when one side there is excess and on the other there is nothing, then this is usury (Riba/Su'd).
PROBLEM:- A thing which is sold by weighing or measure when it is exchanged with a like commodity and if there be an excess (caused deliberately), it is haram. But when this exchange is between two unlike things and the deal is not on weight or measurement, then the increase or decrease is not usury.. The thing on which the question of usury is applicable is on the basis of measurement and weight of the like commodities.
PROBLEM:- When both the criteria i.e. the like commodities and weight/measure exist at one and the same time then excess or decrease becomes haram as usury known in fiqah terminology as `Riba bil Faz'l'. And if one side is the cash and on the other side is credit (debt), this is also haram (known as Riba bin Nisyah). For example when wheat is exchanged with wheat or with barley, then any excess or decrease is haram. Or when one person gives one thing then and there whereas the other will give his equivalent some time later. This is forbidden.
PROBLEM:- The thing about which, the Holy Prophet (Allah's grace and peace be upon him) the excess in measurement has declared haram, it belongs to the category of deal by measurement and the thing in which excess in weight is haram is `deal by weighing'. After this Prophetic declaration, there can be no deviation or variation in the day to day dealings. If the common practice is not in keeping with this pronouncement. However where specific command of the Holy Prophet (Allah's grace and peace be upon him) is not available the commonly accepted procedure can be accepted as valid.
PROBLEM:- A thing of weighing categories if exchanged with a measurable commodity should be of equal worth even if there is difference in weight or measure.
PROBLEM:- In Shariat the least measure is half s'a. If any thing which is less than half s'a can be exchanged with another thing even if there is slight difference in their measure if they belong to the kind of produce.
PROBLEM:- Wheat, barley, date palm, salt or any other commodity which should be sold by measure according to practice under Sahariat Laws, if they sold by weight (as is the general practice in the market) this is permissible.
PROBLEM:- A fish can be exchanged with where fish is not sold by weight. However if fish is sold by weight then the two lumps of fish should be made equal in weight.
PROBLEM:- Fresh dates can be exchanged with dry dates if they are in measure, weighing in this respect in not reliable. This principle applies when dealing fresh fruits with dry fruits.
PROBLEM:- Wet wheat grains can be exchanged with dry wheat grains in equal measure provided the wet wheat is dried and then measured. Milk can be sold in exchange of cheese with modification in their measure.
PROBLEM:- Wheat grains can not be exchanged through equal measure with the floor or sattoo or the exchange of sattoo with floor is also not permissible, though if there be long to the same group of grains, even if they may be equal in weight.
PROBLEM:- In things where equality is the condition for the deal being valid, it is necessary that the knowledge of equality should be mentioned as the time of agreement of deal. If the deal is conducted without the knowledge of equality it will not be in order even if the commodities have correct proportion.
PROBLEM:- The deal of wheat in exchange of wheat was done but the possession on both side did not take place. This is permissible. Commercial deal of grains with its like kind or different kind (of grain) taking possession is not necessary, but this is permissible only when both sides are known to each other.
PRECAUTIONS AGAINST USURY.
Offering and accepting usury are both Haram in Islam. There is condemnation for both in the Tradition (Ahadees) of the Holy Prophet (Allah's grace and peace be upon him). At the same time it is necessary that we should avoid circumstances where by we may be forced to give usury/interest. However, if any just and binding necessity where money can not be obtained except taking loan with usury/interest as a compulsory condition, we must try to find and ways and means whereby we can avoid prying/giving interest as far it is possible. We present certain precautionary measures which would give us some relief from this unavoidable curse, keeping in view that by doing so the lender should also receive some benefits in the form other than plain usury/interest. It will only involve some change in the modalities of transaction which will ensure gains without resorting to unlawful and haram practices.
Note: At times there are situations in which there are superficially little or no difference between profit (nafa) and usury (su'd), through a slight change in the method or mode of deal. To illustrate this, we take some example narrated in the Ahadees (Tradition) of the Holy Prophet (Allah's grace and peace be upon him),
(1) It is reported that the Holy Prophet (Allah's grace and peace be upon him) sent one companion at the governor of Khyber. He brought some nice dates from Khyber and presented them to the Holy Prophet (Allah's grace and peace be upon him), inquired if all the dates of Khyber are of this nice and high quality. He said in negative and added `We exchange two s'as of ordinary dates with one s'a of these high quality of dates and for these s'as we take two sa's of these dates. The Holy Prophet (Allah's grace and peace be upon him) forbade to do so. He told him to sell the ordinary dates and with money so received he should purchase quality dates. He said to observe this principle in all deals where exchange/transaction is does through weighing.
(2) Once Hazrat Bilal (May Allah be pleased with him) brought some (nice) dates and presented them to the Holy Prophet (Allah's grace and peace be upon him). He asked Hazrat Bilal from where he got the dates. Hazrat Bilal replied `I had some old dates at home exchanged two s'as of old dates with one sa' of fresh dates. The Holy Prophet (Allah's grace and Peace be upon him) replied, "Alas! This is all usury (riba). Do not do so. If you want to buy these fresh dates, First sell our own dates and with amount buy the fresh dates. (Saheehain - Muslim - Bukhari)
From these Ahadees it is clear that the intention in each case to get the good quality of dates. It is the mode of dealing that make all the difference. If we exchange old date with fresh dates, it becomes usury/interest (Riba or Su'd) which is forbidden, but if we sell our old date and purchase the fresh dates, it is permissible. Here we present some instances which illustrate avoidance of taking interest, these have been suggested by the scholars of Islam.
PROBLEM:- A man had to receive Rs.10/- as loan/debt. He bought a thing worth Rs.10/- from him the debtor, took possession of the thing and after some time he sold the same thing for Rs.12/- at the hands of the same person on promise of payment at a fixed date. This made the man richer by two rupees. This is his profit (which is permissible) and the interest or su'd (which is forbidden).
PROBLEM:- A man demands repayment of his loan/debt. Which the latter to is unable to comply, but he sold his some thing for Rs.100/- to the loan given, who it look possession of the thing. After wards the loan taker bought the same thing at Rs.110/- with the promise of payment after a year. This transaction is valid.
PROBLEM:- A loan seeker sells a thing to the money lender for Rs.13/- on the promise of 6 months and gave him the possession, but the latter sells the same thing to a stranger who after doing Iqalah sells the same thing to the loan seeker for Rs.10/- and got the money, with the result that the money seeker gets his thing and the money lender gets Rs.10/-, but at the end the loan seeker becomes a debtor of Rs.13/-.
PROBLEM:- There is yet another way to avoid su'd (usury). Suppose a man asks his friend Rs.10/- as loan. He does not lent the money but suggest that he should buy a thing from him for Rs.12/- and sell it for Rs.10/- in the market and thus his needful will be done. The clever man sold that being for Rs.12/- which brought him profit and the deal is also in order from any su'd.
The subject matter discussed under this caption are more imaginary than real. The situations mentioned relating parts of residential accommodation/out house/extra structures, passages through the building are non-existent in the modern living. Similarly these will be of real information/knowledge to persons studying Laws of Shariat through the medium of language other than Urdu.
PROBLEM:- Commercial dealing consist of four phases, (1) on both sides are (2) on both sides are price of thing under deal (3)on one side is and on one side price of thing
This is known as (4) when on both sides is price of thing, it is known as . In the 3rd phase where on one side is and on one side is price of thing, there are two sub division namely where the object of deal is necessarily to be present is known exact deal ( ) and where the payment of price of the thing is instant, it is known as
In the deal the thing which is to be purchased is a liability against seller and the buyer pays the cost price of the object on the spot and the amount j(rupees) which he hands to the seller is known as and and the other is known as and the price is known as .
The part of absolute deals are also in the deal. The presentation of offer and its acceptance are also necessary in the agreement of deal. There are certain conditions in the
which must be fulfilled. These are,
(1) In the agreement there should be no right of choice (Khayar-e-Shart) neither for both nor for one.
(2) In the cost price the nature of currency should be specified.
(3) The nature and denomination of currency extant at the place of deal should be mentioned clearly.
(4) Description of currency especially of coins, counterfeit as well as real is to be stated.
(5) The price/cost of the object of dealing in exact number of and evaluation will be mentioned, merely pointing towards a lump of currency etc will not be enough. If the object of deal are to be paid at different rates/measurement etc, then the nature of cash object, it number (if countable), measure/weight and the total cost against each must be clearly mentioned in the agreement.
(6) In the same meeting of agreement the possession of the capital (cost or price of the object) must in to effect in favour of buyer (Muslim Elahe).
PROBLEM:- The basis features of perfect deal of sale (Bai-e-Salam) is that the buyer shall become the owner of the price of the object and shall become the possessor of .
When this agreement comes into effect and the presents the in time then has to be taken. However, if the thing is against the agreed terms then the
will be forced that the thing on which has taken place should be presented.
PROBLEM:- can be accepted on the condition that the quality/quantity of the thing in the deal should be clear and definable, whether it is of the measure/weighing or countable in number category.
PROBLEM:- To strike a deal in respect of thing which has not been produced is not correct, for example, the fresh crop of wheat unless it is worthy of sale, is not permissible.
PROBLEM:- Things which are sold in numbers, (dozen etc) if their size and weight be also mentioned if permissible.
PROBLEM:- is not permissible in live stocks (animals), in slave or slave girl, cattle or birds, even in birds of similar, shape or size etc, for example pigeons, dove, and
PROBLEM:- can not make any alteration with having paid the cost before and can not make change in the
, for example he can not enter into deal of any kind what so ever. If gives the as a gift and he accepts it, then it will be taken as an iqalah of the deal and not a gift. In that event the amount will have to be returned.
PROBLEM:- To offer any thing else other than agreed in the transaction. For example, if the deal refer to the currency of rupees for payment of the cost, to offer Ashrafi or any other currency will not be in order.
PROBLEM:- To give any other thing in place of the agreed article of deal or take any other thing is not permissible. However if the offers any better which was agreed in deal then can not refuse to accept it. And in he offers any thing of lower quality, he can refuse it.
ISTISNA'A (Making, Manufacturing any thing)
Some times it so happens that a worker or craftsman is asked to make or manufactures a certain thing or things according to desired design, within a given period. If the period is not less than one month, then it is and all conditions which are applicable in such a deal will be observed, without considering any stipulation if this is according to extant culture or fashion. It shall only be seen that the deals conforms to the conditions applicable in such a deal. If there is no fixed time or less than a month then the Istisna will be in order. And thing which is out side custom, fashion as far as Istisna is concerned, then it will not Istisna to be treated as .
PROBLEM:- There is difference of opinions among the scholars whether Istisna is a commercial deal or it comes within the purview of promise. The latter (promise) is a thing not existing at the time or order. Some regard as a deal because a definite agreement with all relevant details of a valid deal. The worker or craftsman brings the manufacture good thus presenting the object of deal in fulfillment of the agreement.
PROBLEM:- The ordered thing shall become the property of amn only when it comes in finished form. The manufacturer can also give the thing to other man for better return. However once he enters in an agreement, he can not decline to complete it.
MISCELLANEOUS PROBLEM OF COMMERCIAL DEALS.
Earthen clay toys making cows, buffaloes, elephant, horse and clay toys meant for children should not be purchased, to do so is not permissible. These toys are also of no value and if some one breaks them, there is no compensation due against him.
PROBLEM:- Live animal such as dog, cat, elephant, panther, hawk, eagle, their deal is valid. Hunting animal/birds whether trained or untrained, can be bought and sold. Biting dog is not fit for training and its deal is also not allowed.
PROBLEM:- To buy (tame) monkeys for frolics and fun is not allowed and to play with for this purpose is also haram.
PROBLEM:- To keep dog and tame it to protect domestic animals, agriculture field watch and guarding the house and inmates and for hunting purposes is permissible. To keep dog for purpose other than these is not permissible. Even for these purposes dog should not be kept in side the house except where thieves/robbers are to be warned.
PROBLEM:- All sea/water creatures except fish can not be used for commercial deal, they include frogs, crabs etc insects living in earth holes, rats, musk-rats, lizard, chameleon, scorpion, ants their deal is not valid.
PROBLEM:- Non-believers including Zimmis have to follow Islamic Laws in respect of commercial deal. However if they deal in wine (liqueur) and flesh of swine, the Muslims authorities will not object provided they do not do so openly and freely.
PROBLEM:- If an non-believer buys the Holy Quran or any other Holy Islamic Books he shall be persuaded to make them over to a Muslim on payment of the price.
PROBLEM:- A man buys a thing but does not take its possession nor pays the price and disappears, but is known to be residing at a certain place. It is not open for the Qazi to sell the thing and received the price. If however his address is not known and if he later proves his deal on the strength of witnesses, then the Qazi or his assistant can sell the thing and pay its price (to the seller).
PROBLEM:- The widow pays for the coffin shroud of her deceased husband or some from his survivors pays for the shroud. If the shroud is of the required quality, the buyer can take the amount from the inheritance of the deceased. However if some one else pays for the coffin (and other funeral expenses) he will not receive from the inheritance. It will be an act of pretty and virtue of new era from the Divine.
PROBLEM:- Some one earns money through haram means or takes the money by force and purchase some thing. Now there are certain factors involved (1) He paid the same amount as price (2) taking this haram money in view he purchases the thing and pays the price from this money (3) bought the thing from unlawful amount but pays other money (4) without fixing the money in mind he simply order to give the thing from this amount (5) bought from the unlawful money but paid other money (i.e. not unlawful). In the first condition the deal is not halal for the buyer and the profit from is also unlawful. In the other three conditions the deal is valid or halal.
Warning: What thing becomes unlawful (faisd) in account of pre conditions and what does not makes it so and on what things can kept suspended upon condition or otherwise depends upon the following principles or formula.
What a thing is exchanged with another thing, it shall become unlawful/faulty with a faulty condition as a deal becomes unlawful what faulty or defective or improper conditions a re brought to bear upon it. And the thing is not to be exchanged with another material thing, the deal shall not be impermissible on account of improper condition placed on it whether the material thing it to be exchanged with a non-material thing/object (e.g. Nikah, Talaq (divorce) and Khula in exchange of money), or if they pertain to deeds of virtue (eg. gift, will). In those affairs the imperfect conditions themselves become in applicable, or the debt if it is end in a shape of exchange (which is normally is not the situation) but since its motive in the beginning is on a note of virtue, the imperfect condition will not make it imperfect or unlawful.
The other principle is that the thing or affair in which the primary condition is securing possession (Tamleek) or making it binding (Taq'eed to imprison) they can not be made subject to conditions. For example in respect of having possession (Tamleek) we can quote the incidents of business deal hiba (gift) monopoly, Nikah, consent or confession (Iqrar).
In respect of Taqeed (to exercise option) in respect of some existing agreement, in this respect the right of a husband to resume matrimonial, in the light of Quranic permission, with the wife whom he has given Talaq-e-Rajee, To cancel agreement with a court advocate (with a view to appoint another one in his place), to with hold or withdraw privileges and concessions due a (bought) slave, (other postulates are purely presumptive or dialectical, hence skipped over).
Further example of imposition of faulty conditions which the business deal nul and void.
Making condition for fulfillment of agree. A man under debt if he imposes condition that he will pay the debt. This conditional willingness is not valid.
Agreeing on oath as a condition to do a certain job is not binding.
Tahkeen conditional for emulation of group of persons to decide a issue in not valid.
There are certain things/affairs which in spite of faulty condition remain in tact. There are (1) debt (loan) (2)presents or gifts (3) Nikah (4) Talaq (divorce) (5) Khula (divorce through wife) (6) charity (sadaqah) (7) (8) pledge, pawn (9)
(10) Will (wasiyat) (11) partnership (12)
(13) (14) riches ( ) (15) (16)
(17) (18) (19) (20)permitting slave to trade and many others.
BAI-E-SARF (Deal or exchange of price in one currency with price
in other currency.
The word `Sarf' specifically in transaction deals for price, cost, wages or return of labour, while the term `Bai-e-Sarf' stand for a deal in which the price is sold (exchanged) with a price, in other words, the exchange or deal of a thing with a like thing in relation to currency (as a cash) with another currency (in commodity), for example, buying silver or silver coins of smaller denominations or buying gold with guinea (ashrafi). Some times it is the exchange takes place with an unlike commodity for example, to buy gold or guinea with rupee.
PROBLEM:- The word saman (price, cost etc) stands in the common sense the thing with the help of which things can be purchased and it is used for this very purposed and meant for the specific purpose. It may be a natural prof produced (gold, silver, minerals etc) or designed by man (gold guinea, jewels etc).
The other kind of saman brought in the market as exchange units. If we call the first category as natural or created (Khalqi) the other kind of saman is artificial or in allegorical sense as human designed (or Ghair Kahlqi) eg. paper currency, small change coins.
PROBLEM:- When a silver is exchanged with silver or gold is exchanged with gold (in both cases the medium of exchanges is like commodity), it is necessary that they should be of equal weight and the deal should be conducted in the same sitting with the possession being given to each party of deal.
PROBLEM:- In the deal of mixed commodities of like nature there can not be a choice of selection. It means that permissible that in the event of mixed deal containing lumps of genuine and counter feit ones, all the genuine article be placed at one side though in small quantity and equated with the counter feit articles on the other side in a larger quantity. (The genuine and the counter feit can not be equated irrespective of the quantities offered in exchange.)
PROBLEM:- In a deal involving commodities of different nature and quality their weighing is not necessary, because weighing is necessary only when equality of thing in weight is the criterion. But in such a deal it is essential that the possession of commodities (articles of deal) id given to both the parties in the same sitting, if the sitting is dispersed before the possession, the deal will become invalid.
PROBLEM:- Bai-e-Sarf (exchange of price in one currency with price in other currency) is not valid through promise or through correspondence as in both the cases the possession of the respective parties is not possible in the same sitting.
PROBLEM:- If the Bai-e-Sarf correctly takes place then the exchange mediums on both side can remain undetermined in terms of nature and quality, for example, a rupee can be exchanged with any other rupee provided it is genuine, the presentation and acceptance this can take place as a valid deal.
PROBLEM:- IF the deal of Bai-e-Sarf the imposition of Kharar-e-Shart (right of choice) renders it nul and void. Similarly, if from any side the time for payment is proposed (as against on the spot) the deal does not remain in tact. However, if in that very sitting, the right of option (Khayar-e-Shart) and time for payment are withdrawn, the agreement of deal will become valid.
PROBLEM:- If in the deal of gold - silver any side proposes payment on credit, the deal becomes faulty. Unless the person desiring payment on credit pays the full amount before dispersing.
PROBLEM:- In making purchase of nay thing of gold and silver, the buyer has the right of finding fault (khayar-e-Aib) and the right of examining its quality (Khayar-e-rujat). There is no khayar-e-rujat in the deal of rupee - gold guinea, but there is khayar-e-aib.
PROBLEM:- Unless the buyer takes the possession of the thing, he can not make any use of that thing. If he gives the thing as a gift or sadagah or forgives the entire cost and the other person accepts it, then the Bai-e-Sarf becomes invalid.
PROBLEM:- The silver which is used in the sword as an alloy should be less in cost than the silver to be paid as a price of that sword. The relative cost of both (the silver in the sword and the one to be paid as price) should be carefully examined to make the deal valid and avoiding as a deal of unlawful gain or su'd.
PROBLEM:- If there is dirt in gold and silver and the metal as such is dominant, then the thing will be assumed as of gold or silver, and if they are sue as medium of payment for any object of gold and silver, then the balance on both sides should be equal in weight. Also in the matter of debt/loan their weight will be the criterion.
PROBLEM:- When alloy in the gold and silver is dominant, then it can not treated at par with the real gold and silver. If this alloy is uses a medium of price of a thing made of gold/silver then the quantity of gold/silver should be made equal to that in the alloy. Otherwise the bai-e-sarf will not be valid.
PROBLEM:- The rupee coins in which the element of alloy is dominant, their use in the matter of deal and debt/loan is permissible as by weighing or counting numbers. If the system is that of weighing the by that method (weighing) and it the system through counting (in number) then it should be employed.
BAI-E-TALJIAH (FEIGNED OR DECEPTIVE DEAL).
PROBLEM:- When a man wants to undertake a deal with some person, but fears that if his plan is out some other (whom he knows)will snatch away the thing by force which he can not resist. He will arrange a feigned deal with the buyer, but in reality it will be just a show. HE will also arrange witnesses to this effect. For Bai-e-Taljiah it is necessary that the must speak out his mind before other persons, merely thinking in wanting the deal will not be complete, although Taljiah is at heart only a joke, a buffoonery.
PROBLEM:- By implication `Taljiah' deal is a `suspended' deal. It can be turned into a real deal id the parties concerned so desire. If they refuse it, the deal will stand rejected or cancelled, when such an situations is part of the agreement. In the event of the deal being Taljiah or other wise, the matter shall be resolved by producing evidence on either side.
BAI-UL-WAFA (DEAL OF COMPROMISE).
This also known as BAI-UL-AMANAT, (deal of Trust), BAI-UL-ITA'AT (deal of Fealty) and BAI-UL-MU'AMLA (deal of Mutual Affair). The basic or fundamental under standing between the buyer and the seller in this deal is that when the seller returns the price of the thing (in deal) to the buyer he will return the thing to the seller. This may also be used in taking and returning the debt/loan within the stipulated time.
PROBLEM:- Bai-ul-Wafa is in essence a kind of ;ledge or pawning a thing on certain conditions. The thing is pledged by way of deal so that it may be used as a commercial enterprise to earn profit. Which will be equally distributed between the pledger and the pledge.
If the thing pledged is lost or destroyed, then the amount due against the pledger will also lapse provided the due is equal to the amount of debt.
PROBLEM:- The affairs involved in the Bai-ul-Wafa are of complex nature as also opinions of the scholars are of varied nature.
This is in a sense a partnership in a business or commercial transaction. In this partnership on one side is the finance (capital) and on the other side is the labour or skill to undertake agree business. The person who supplies the finance is called the and the one who undertakes the work of running of business through manual and skilled labour is called `Muzarab' ( ), and the finance supplied by the owner is known as or capital. If according to agreement the whole of the profit is to be given to the owner/capitalist, the process is known as and if the entire earning is to be given to the worker, then it would be (loan).
In the modern business, the association of capital and labour has become the necessity. Neither the capitalist nor the labour/worker handle the growing business enterprise on his own. The worker needs financial assistance to earn his livelihood by engaging himself is some skill cum- manual pursuits. The capital too can not increase by remaining idle at home or in the bank. The institution of Muzarabat in the ever growing commercial transaction is thus of great help and profit to both the partners in Muzarabat deal.
PROBLEM:- There are some conditions in the Muzarabat.
(1) The capital should be in the form of price i.e. money or exchangeable currency, but not of the nature of assets or the articles as such. However articles can be sold and with the price so received the process of Muzarabat can be undertaken.
(2) The capital should be present and noticeable. In the event of difference in the quantum of capital at the time of distribution of profit the matter should be resolved through the process of witnesses and evidence.
(3) The capital should be an absolute reality as such, duly calculated and computed, known as hard cash, not in the from of loan or document of loan/debt.
PROBLEM:- By selling anything and with the amount so received as its price and utilizing the amount as capital or part of capital is permissible. The amount kept as trust with any one or the amount forcibly taken by some can be utilized as Muzarabah by agreeing to divide the profit 50-50 is also permissible.
(4) The entirement of capital (to be utilized in Muzarabah) should be made over to the worker and the latter should have complete possession and control on the capital, free from all interference by the capital owner.
(5) The profit should be divided according to agreed formula, 50 - 50, 1/3 - 2/3, 1/4 - 3/4. The ratio of the profit should be definite and not subject to any kind of provision.
(6) The share of each one should be known and specific and free from all ambiguities likely to crop up now a afterwards.
(7) The giving of profit to the worker should be binding on the person investing capital in the Muzarabah. If the profit is partly given from the capital or party from capital and partly from the profit, then the Muzarabah will be nul and void.
PROBLEM:- The Muzarabah implies that when the capital is handed over to the worker (Muzarib) his position becomes that of a trustee (Ameen), and when he starts working be assumes the role of a vakil (guardian of interest) for both side and when earning /profit becomes the partner (shareek).
PROBLEM:- The loss in the Muzaraba is the liability of the capital supplier (Rab-bul-M'al). However, if is desired that the loss should be borne by the worker and not by the financer, then they will have to the procedure as under.
The financer should treat the amount as loan to the worker and add to it one rupee as a token of partnership Now both will work together and will share equal profit. If the loss occurs the loss will be of the worker who after taking the entire capital as loan becomes the finance owner. The loss of real financer will be only one. Now he can receive the debt which has become due against the pseudo financer, i.e. worker.
PROBLEM:- If Muzarabat becomes nul a void. It is converted to monopoly which means that the worker (as a partner) will not get the share in the profit, but he will receive the wages proportionate to his labour, whether or not there is a profit in the enterprise. However the amount of his wages shall not exceed the profit that he would get if the muzarabah had continued.
PROBLEM:- In the event of the Muzarabah but inoperative, the sum of money that remains with the worker, is like a trust (amanat) with him. If some loss occurs, then as an ammen (trustee) the compensation will not lie with him, in the same way as in the regular and valid Muzarabah there is no question of compensation for any loss.
The worker gives an amount to some one and receives the entire profit to himself (as the owner of the capital), Here too the capital is an trust with him and as such if any loss occurs there is no compensation or guarantee payable.
PROBLEM:- The worker will not undertake a work which involves physical injury nor engage himself in a work which the business men as a practice do not undertake, nor allow time limit to others which the businessmen do not deal. If there is a partnership of two worker to work jointly, then one of them alone can not do any business of buying, selling unless he gets approval from his colleague.
PROBLEM:- In the event of an irregular or faulty deal any thing purchase becomes the property of the buyer, this is not an act of opposition and deal will still be called Muzarabah. If however the thing is purchased with deliberate intention of fraud or usurpation (Ghaban-e-Fahish), then it will an act of (clear) opposition, and this thing will be the property of the worker even if the owner (supplying finance) allows the worker to use his discretion. If now the worker sells the article with intention of deliberate fraud, his act will not be deemed or opposition.
PROBLEM:- If the capital supplier (finance) imposes conditions upon the worker (the other partner of Muzarabah) in respect of the city (place), time or the nature of business, then it becomes binding on the worker to abide by it. Further, if the financer restricts deal to some definite person as seller or buyer, the worker can not defy it. although he did not mention these restrictions at the time of agreement or handing over the amount to the worker or added then afterwards.
PROBLEM:- The worker enters into an agreement with person with whom his evidence is not reliable, for example, his father, his son, or his wife. If the deal in such as case is of a moderate nature, it is permissible, otherwise not.
PROBLEM:- In the event of death of any of the two partner the Muzarabah becomes in operative as also when any one becomes mad. If the article are in the shape of business, and if the worker dies then the exactor of his (wasi) can sell the entire lot of articles. If the owner (financer) dies and the commodity of deal is in the shape of cash amount, then the worker can not interfere and if the deal is of physical nature, he can not take it in his travel (out side). He can however sell it locally.
PROBLEM:- If the worker dies and it is not known where the articles of deal are, then the article in his possession prior to his death will be deemed as debt/loan against the deceased and it shall be recovered from his inheritance.
PROBLEM:- The worker dies and there is debt outstanding against him, but the articles of Muzarabah are known and as such the creditors can not claim repayment of their debt. The capital and the profit will go to the financer. The creditors can get repayment of debts from the share of the profit due to the deceased worker.
PROBLEM:- In the deal of Muzarabah the loss and or destruction in the capital is adjusted to wards the profit of the Muzarah. There is no consideration of loss in the Muzarabah. For example, the capital of Rs.100/- (on earlier time, this was considered an assets/capital. Time has much changed since ! Translator) if the profits is Rs.20/- and the loss Rs.10/- then this loss will be adjusted (recovered) Towards the profit and the net profit shall be deemed as only Rs.10/-. However if the loss is so much which the profit can not fulfill, IN this case the loss will be taken as in the capital. Half of the loss (50-50) can not be recovered from the worker, because he is the Ameen (trustee) and there is no compensation against the ameen, even if the loss has occurred from the worker. If however the worker does some thing deliberately which causes loss, then the loss shall be recovered from him because his action was not authorized in the agreement.
PROBLEM:- The process of distribution of Dividend/Profit will take place after returning the capital of the financer of the Muzarabah. To distributor of profit before returning the capital in full to the owner will be invalid and unjust. Supposing the capital is lost, then the shortage shall be compensated by withdrawing the amount from the profit to complete the amount of capital invested in the Mozarabah. The remainder of the profit should then be distributed.
PROBLEM:- In case of dispute between the owner (financer) and the worker in respect of quantum of profit fixed/unfixed in the agreement the issue shall be decided by the Qazi (court of Islamic Jurisprudence) on the strength of the witnesses form both the sides. However weight age should be given to the owner of the capital when the dispute specifically relates to capital employed and utilized in the Muzarabah, without the capital/finance the Muzarabah as such has no "locus standi".
PROBLEM:- The guardian/executer of the will on behalf the minor inheritor takes and utilize the amount by way of Muzarabah. This step is held valid by the Ulema who would like to add one more stipulation in that the world take only that much profit as he would have given to other person.
PROBLEM:- The worker buys something from the capital of the Muzarabah, but he is not inclined to sell the thing right now. This he would do when greater profit is coming forth. But the owner insists to sell the thing if on a small profit. the worker will have to comply with the owner plea, However if the worker pleads that a later date he will return the capital alongwith a larger sum of profit. The owner, in that case, would be compelled to do as the worker proposes.
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Source : Barkati