Yahya related to me from Malik from a reliable source
from Amr ibn Shuayb from his father from his father's
father that the Messenger of Allah, may Allah bless him
and grant him peace, forbade transactions in which
nonrefundable deposits were paid.
Malik said, "That is, in our opinion, but Allah knows
best, that for instance, a man buys a slave or slave-girl
or rents an animal and then says to the person from whom
he bought the slave or leased the animal, 'I will give you
a dinar or a dirham or whatever on the condition that if I
actually take the goods or ride what I have rented from
you, then what I have given you already goes towards
payment of the goods or hire of the animal. If I do not
purchase the goods or hire the animal, then what I have
given you is yours without liability on your part.' "
Malik said, "According to the way of doing things with
us there is nothing wrong in bartering an arabic speaking
merchant slave for abyssinian slaves or any other type
that are not his equal in eloquence, trading, shrewdness,
and know-how. There is nothing wrong in bartering one
slave like this for two or more other slaves with a stated
delay in the terms if he is clearly different. If there is
no appreciable difference between the slaves, two should
not be bartered for one with a stated delay in the terms
even if their racial type is different."
Malik said, "There is nothing wrong in selling what has
been bought in such a transaction before taking possession
of all of it as long as you receive the price for it from
some one other than the original owner."
Malik said, "An addition to the price must not be made
for a foetus in the womb of its mother when she is sold
because that is gharar (an uncertain transaction). It is
not known whether the child will be male or female,
good-looking or ugly, normal or handicapped, alive or
dead. All these things will affect the price."
Malik said that in a transaction where a slave or
slave-girl was bought for one hundred dinars with a stated
credit period that if the seller regretted the sale there
was nothing wrong in him asking the buyer to revoke it for
ten dinars which he would pay him immediately or after a
period and he would forgo his right to the hundred dinars
which he was owed.
Malik said, "However, if the buyer regrets and asks the
seller to revoke the sale of a slave or slave-girl in
consideration of which he will pay an extra ten dinars
immediately or on credit terms, extended beyond the
original term, that should not be done. It is disapproved
of because it is as if, for instance, the seller is buying
the one hundred dinars which is not yet due on a year's
credit term before the year expires for a slave-girl and
ten dinars to be paid immediately or on credit term longer
than the year. This falls into the category of selling
gold for gold when delayed terms enter into it."
Malik said that it was not proper for a man to sell a
slave-girl to another man for one hundred dinars on credit
and then to buy her back for more than the original price
or on a credit term longer than the original term for
which he sold her. To understand why that was disapproved
of in that case, the example of a man who sold a
slave-girl on credit and then bought her back on a credit
term longer than the original term was looked at. He might
have sold her for thirty dinars with a month to pay and
then buy her back for sixty dinars with a year or half a
year to pay. The outcome would only be that his goods
would have returned to him just like they were and the
other party would have given him thirty dinars on a
month's credit against sixty dinars on a year or half a
year's credit. That was not to be done.
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that Umar ibn al-Khattab said, "If a slave who
has wealth is sold, that wealth belongs to the seller
unless the buyer stipulates its inclusion."
Malik said, "The generally agreed upon way of doing
things among us is that if the buyer stipulates the
inclusion of the slave's property whether it be cash,
debts, or goods of known or unknown value, then they
belong to the buyer, even if the slave possesses more than
that for which he was purchased, whether he was bought for
cash, as payment for a debt, or in exchange for goods.
This is possible because a master is not asked to pay
zakat on his slave's property. If a slave has a
slave-girl, it is halal for him to have intercourse with
her by his right of possession. If a slave is freed or put
under contract (kitaba) to purchase his freedom, then his
property goes with him. If he becomes bankrupt, his
creditors take his property and his master is not liable
for any of his debts."
Yahya related to me from Malik from Abdullah ibn Abi
Bakr ibn Muhammad ibn Amr ibn Hazm that Aban ibn Uthman
and Hisham ibn Ismail used to mention in their khutbas
built-in liability agreements in the sale of slaves, to
cover both a three day period and a similar clause
covering a year. Malik explained, "The defects a lave or
slave-girl are found to have from the time they are bought
until the end of the three days are the responsibility of
the seller. The year agreement is to cover insanity,
leprosy, and loss of limbs due to disease. After a year,
the seller is free from any liability."
Malik said,"An inheritor or someone else who sells a
slave or slave-girl without any such built-in guarantee is
not responsible for any fault in the slave and there is no
liability agreement held against him unless he was aware
of a fault and concealed it. If he was aware of a fault,
the lack of guarantee does not protect him. The purchase
is returned. In our view, built-in liability agreements
only apply to the purchase of slaves."
Yahya related to me from Malik from Yahya ibn Said from
Salim ibn Abdullah that Abdullah ibn Umar sold one of his
slaves for eight hundred dirhams with the stipulation that
he was not responsible for defects. The person who bought
the slave complained to Abdullah ibn Umar that the slave
had a disease which he had not told him about. They argued
and went to Uthman ibn Affan for a decision . The man
said, "He sold me a slave with a disease which he did not
tell me about." Abdullah said, "I sold to him with the
stipulation that I was not responsible." Uthman ibn Affan
decided that Abdullah ibn Umar should take an oath that he
had sold the slave without knowing that he had any
disease. Abdullah ibn Umar refused to take the oath, so
the slave was returned to him and recovered his health in
his possession. Abdullah sold him afterwards for 1500
dirhams.
Malik said, "The generally agreed upon way of doing
things among us about a man who buys a female slave and
she becomes pregnant, or who buys a slave and then frees
him, or if there is any other such matter which has
already happened so that he cannot return his purchase,
and a clear proof is established that there was a fault in
that purchase when it was in the hands of the seller or
the fault is admitted by the seller or someone else, is
that the slave or slave-girl is assessed for its value
with the fault it is found to have had on the day of
purchase and the buyer is refunded,from what he paid,the
difference between the price of a slave who is sound and a
slave with such a defect.
Malik said, "The generally agreed upon way of doing
things among us regarding a man who buys a slave and then
finds out that the slave has a defect for which he can be
returned and meanwhile another defect has happened to the
slave whilst in his possession, is that if the defect
which occurred to the slave in his possession has harmed
him, like loss of a limb, loss of an eye, or something
similar, then he has a choice. If he wants, he can have
the price of the slave reduced commensurate with the
defect (he bought him with ) according to the prices on
the day he bought him, or if he likes, he can pay
compensation for the defect which the slave has suffered
in his possession and return him. The choice is up to him.
If the slave dies in his possession, the slave is valued
with the defect which he had on the day of his purchase.
It is seen what his price would really have been. If the
price of the slave on the day of purchase without fault
was 100 dinars, and his price on the day of purchase with
fault would have been 80 dinars, the price is reduced by
the difference. These prices are assessed according to the
market value on the day the slave was purchased . "
Malik said, "The generally agreed upon way of doing
things among us is that if a man returns a slave girl in
whom he has found a defect and he has already had
intercourse with her, he must pay what he has reduced of
her price if she was a virgin. If she was not a virgin,
there is nothing against his having had intercourse with
her because he had charge of her."
Malik said, "The generally agreed upon way of doing
things among us regarding a person, whether he is an
inheritor or not, who sells a slave, slave-girl, or animal
without a liability agreement is that he is not
responsible for any defect in what he sold unless he knew
about the fault and concealed it. If he knew that there
was a fault and concealed it, his declaration that he was
free of responsibility does not absolve him, and what he
sold is returned to him."
Malik spoke about a situation where a slave-girl was
bartered for two other slave-girls and then one of the
slave-girls was found to have a defect for which she could
be returned. He said, "The slave-girl worth two other
slave-girls is valued for her price. Then the other two
slave-girls are valued, ignoring the defect which the one
of them has. Then the price of the slave-girl sold for two
slave-girls is divided between them according to their
prices so that the proportion of each of them in her price
is arrived at - to the higher priced one according to her
higher price, and to the other according to her value.
Then one looks at the one with the defect, and the buyer
is refunded according to the amount her share is affected
by the defect, be it little or great. The price of the two
slave-girls is based on their market value on the day that
they were bought."
Malik spoke about a man who bought a slave and hired
him out on a long-term or short-term basis and then found
out that the slave had a defect which necessitated his
return. He said that if the man returned the slave because
of the defect, he kept the hire and revenue. "This is the
way in which things are done in our city. That is because,
had the man bought a slave who then built a house for him,
and the value of the house was many times the price of the
slave, and he then found that the slave had a defect for
which he could be returned, and he was returned, he would
not have to make payment for the work the slave had done
for him. Similarly, he would keep any revenue from hiring
him out, because he had charge of him. This is the way of
doing things among us."
Malik said, "The way of doing things among us when
someone buys several slaves in one lot and then finds that
one of them has been stolen, or has a defect, is that he
looks at the one he finds has been stolen or the one in
which he finds a defect. If he is the pick of those
slaves, or the most expensive, or it was for his sake that
he bought them, or he is the one in whom people see the
most excellence, then the whole sale is returned. If the
one who is found to be stolen or to have a defect is not
the pick of the slaves, and he did not buy them for his
sake, and there is no special virtue which people see in
him, the one who is found to have a defect or to have been
stolen is returned as he is, and the buyer is refunded his
portion of the total price."
Section: What is Done about Slave-Girls when Purchased
and Conditions Made about Them
Yahya related to me from Malik from Ibn Shihab that
Ubaydullah ibn Abdullah ibn Utba ibn Masud told him that
Abdullah ibn Masud bought a slave-girl from his wife,
Zaynab Ath Thaqafiyya. She made a condition to him, that
if he bought her, she could always buy her back for the
price that he paid. Abdullah ibn Masud asked Umar ibn al-Khattab
about that and Umar ibn al-Khattab said, "Do not go near
her while anyone has a condition concerning her over you."
Yahya related to me from Malik from Nafi that Abdullah
ibn Umar would say, "A man should not have intercourse
with a slave girl except one whom, if he wished, he could
sell, if he wished, he could give away, if he wished, he
could keep, if he wished, he could do with her what he
wanted ."
Malik said that a man who bought a slave-girl on
condition that he did not sell her, give her away, or do
something of that nature, was not to have intercourse with
her. That was because he was not permitted to sell her or
to give her away, so if he did not own that from her, he
did not have complete ownership of her because an
exception had been made concerning her by the hand of
someone else. If that sort of condition entered into it,
it was a messy situation, and the sale was not
recommended.
Section: Prohibition against Intercourse with
Slave-Girls Who Have Husbands
Yahya related to me from Malik from Ibn Shihab that
Abdullah ibn Amir gave Uthman ibn Affan a slave-girl who
had a husband whom he had purchased at Basra. Uthman said,
"I will not go near her until her husband separates from
her." Ibn Amir compensated the husband and he separated
from her.
Yahya related to me from Malik from Ibn Shihab from Abu
Salama ibn Abd ar-Rahman ibn Awf that Abd ar-Rahman ibn
Awf bought a slave-girl and found that she had a husband,
so he returned her.
Section: Ownership of the Fruit of Trees which have been
Sold
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that the Messenger of Allah, may Allah bless him
and grant him peace, said, "If palm trees are sold after
they have been pollinated, the fruit belongs to the seller
unless the buyer makes a stipulation about its inclusion."
Section: Prohibition against Selling Fruit until It
starts to Ripen
Yahya related to me from Malik from Nafi from Ibn Umar
that the Messenger of Allah, may Allah bless him and grant
him peace, forbade selling fruit until it had started to
ripen. He forbade the transaction to both buyer and
seller.
Yahya related to me from Malik from Humayd at-Tawil
from Anas ibn Malik that the Messenger of Allah, may Allah
bless him and grant him peace, forbade selling fruit until
it had become mellow. He was asked, "Messenger ofAllah!
What do you mean by become mellow?" He said, "When it
becomes rosy."
The Messenger of Allah, may Allah bless him and grant
him peace, added, "Allah may prevent the fruit from
maturing, so how can you take payment from your brother
for it."
Yahya related to me from Malik from Abu'r-Rijal
Muhammad ibn Abd ar-Rahman ibn Haritha from his mother,
Amra bint Abd ar-Rahman that the Messenger of Allah, may
Allah bless him and grant him peace, forbade selling fruit
until it was clear of blight. Malik said, "Selling fruit
before it has begun to ripen is an uncertain transaction (gharar)
."
Yahya related to me from Malik from Abu'z-Zinad from
Kharija ibn Zayd ibn Thabit that Zayd ibn Thabit did not
sell fruit until the Pleiades were visible, at the end of
May.
Malik said, "The way of doing things among us about
selling melons, cucumbers, water-melons, and carrots is
that it is halal to sell them when it is clear that they
have begun to ripen. Then the buyer has what grows until
the season is over. There is no specific timing laid down
for that because the time is well known with people, and
it may happen that the crop will be affected by blight and
put a premature end to the season. If blight strikes and a
third or more of the crop is damaged, an allowance for
that is deducted from the price of purchase."
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar from Zayd ibn Thabit that the Messenger of Allah,
may Allah bless him and grant him peace, allowed the
holder of an ariya to barter the dates on the palm for the
amount of dried dates it was estimated that the palms
would produce.
Yahya related to me from Malik from Da'ud ibn al-Husayn
from Abu Sufyan, the mawla of Ibn Abi Ahmad, from Abu
Hurayra that the Messenger of Allah, may Allah bless him
and grant him peace, allowed the produce of an ariya to be
bartered for an estimation of what the produce would be
when the crop was less than five awsuq or equal to five
awsuq. Da'ud wasn't sure whether he said five awsuq or
less than five.
Malik said, ''Ariyas can be sold for an estimation of
what amount of dried dates will be produced. The crop is
examined and estimated while still on the palm. This is
allowed because it comes into the category of delegation
of responsibility, handing over rights, and involving a
partner. Had it been like a form of sale, no one would
have made someone else a partner in the produce until it
was ready nor would he have renounced his right to any of
it or put someone in charge of it until the buyer had
taken possession."
Section: How Crop Damage Affects Sales of Agricultural
Produce
Yahya related to me from Malik that Abu'r-Rijal
Muhammad ibn Abd ar-Rahman heard his mother, Amra bint Abd
ar-Rahman say, "A man bought the fruit of an enclosed
orchard in the time of the Messenger of Allah, may Allah
bless him and grant him peace, and he tended it while
staying on the land. It became clear to him that there was
going to be some loss. He asked the owner of the orchard
to reduce the price for him or to revoke the sale, but the
owner made an oath not to do so. The mother of the buyer
went to the Messenger of Allah, may Allah bless him and
grant him peace, and told him about it. The Messengerof
Allah, may Allah bless him and grant him peace, said, 'By
this oath, he has sworn not to do good.' The owner of the
orchard heard about it and went to the Messenger of Allah,
may Allah bless him and grant him peace, and said,
'Messenger of Allah, the choice is his.' "
Yahya related to me from Malik from Abdullah ibn Abi
Bakr that his grandfather, Muhammad ibn Amr ibn Hazm sold
the fruit of an orchard of his called al-Afraq, for 4,000
dirhams, and he kept aside 800 dirhams' worth of dry
dates.
Yahya related to me from Malik from Abu'r-Rijal,
Muhammad ibn Abdar-Rahman ibn Haritha that his mother,
Amra bint Abd ar-Rahman used to sell her fruit and keep
some of it aside.
Malik said, "The generally agreed upon way of doing
things among us is that when a man sells the fruit of his
orchard, he can keep aside up to a third of the fruit, but
that is not to be exceeded. There is no harm in what is
less than a third."
Malik added that he thought there was no harm for a man
to sell the fruit of his orchard and keep aside only the
fruit of a certain palm-tree or palm-trees which he had
chosen and whose number he had specified, because the
owner was only keeping aside certain fruit of his own
orchard and everything else he sold.
Section: What is Not Recommended in the Sale of Dates
Yahya related to me from Malik from Zayd ibn Aslam that
Ata ibn Yasar said, "The Messenger of Allah, may Allah
bless him and grant him peace, said, 'Dried dates for
dried dates is like for like.' It was said to him, 'Your
agent in Khaybar takes one sa for two.' The Messenger of
Allah, may Allah bless him and grant him peace, said, 'all
him to me.' So he was called for. The Messenger of Allah,
may Allah bless him and grant him peace, asked, 'Do you
take one sa for two?' He replied, 'Messengerof Allah! Why
should they sell me good dates for assorted low quality
dates, sa for sa!' The Messenger of Allah, may Allah bless
him and grant him peace, said, 'Sell the assorted ones for
dirhams, and then buy the good ones with those dirhams.' "
Yahya related to me from Malik from Abd al-Hamid ibn
Suhayl ibn Abd ar-Rahman ibn Awf from Said ibn al-Musayyab
from Abu Said al-Khudri and from Abu Hurayra that the
Messenger of Allah, may Allah bless him and grant him
peace, appointed a man as an agent in Khaybar, and he
brought him some excellent dates. The Messenger of Allah,
may Allah bless him and grant him peace, said to him, "Are
all the dates of Khaybar like this?" He said,"No. By
Allah, Messenger of Allah! We take a sa of this kind for
two sa or two sa for three." The Messenger of Allah, may
Allah bless him and grant him peace, said, "Do not do
that. Sell the assorted ones for dirhams and then buy the
good ones with the dirhams."
Yahya related to me from Malik from Abdullah ibn Yazid
that Zayd ibn Ayyash told him that he had once asked Sad
ibn Abi Waqqas about selling white wheat for a type of
good barley. Sad asked him which was the better and when
he told him the white wheat, he forbade the transaction.
Sad said, "I heard the Messenger of Allah, may Allah bless
him and grant him peace, being asked about selling dried
dates for fresh dates, and the Messenger of Allah, may
Allah bless him and grant him peace, said, 'Do the dates
diminish in size when they become dry?' When he was told
that they did, he forbade that."
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that the Messenger of Allah, may Allah bless him
and grant him peace, forbade muzabana. Muzabana was
selling fresh dates for dried dates by measure, and
selling grapes for raisins by measure.
Yahya related to me from Malik from Da'ud ibn al-Husayn
from Abu Sufyan, the mawla of Ibn Abi Ahmad, from Abu Said
al-Khudri that the Messenger of Allah, may Allah bless him
and grant him peace, forbade muzabana and muhaqala.
Muzabana was selling fresh dates for dried dates while
they were still on the trees. Muhaqala was renting land in
exchange for wheat.
Yahya related to me from Malik from Ibn Shihab from
Said ibn al-Musayyab that the Messenger of Allah, may
Allah bless him and grant him peace, forbade muzabana and
muhaqala. Muzabana was selling fresh dates for dried
dates. Muhaqala was buying unharvested wheat in exchange
for threshed wheat and renting land in exchange for wheat.
Ibn Shihab added that he had asked Said ibn al-Musayyab
about renting land for gold and silver. He said, "There is
no harm in it."
Malik said, "The Messenger of Allah, may Allah bless
him and grant him peace, forbade muzabana. The explanation
of muzabana is that it is buying something whose number,
weight and measure is not known with something whose
number, weight or measure is known, for instance, if a man
has a stack of food whose measure is not known, either of
wheat, dates, or whatever food, or the man has goods of
wheat, date kernels, herbs, safflower, cotton, flax, silk,
and does not know its measure or weight or number and then
a buyer approaches him and proposes that he weigh or
measure or count the goods, but, before he does, he
specifies a certain weight, or measure, or number and
guarantees to pay the price for that amount, agreeing that
whatever falls short of that amount is a loss against him
and whatever is in excess of that amount is a gain for
him. That is not a sale. It is taking risks and it is an
uncertain transaction. It falls into the category of
gambling because he is not buying something from him for
something definite which he pays. Everything which
resembles this is also forbidden."
Malik said that another example of that was, for
instance, a man proposing to another man, "You have cloth.
I will guarantee you from this cloth of yours so many
hooded cloaks, the measureof each cloak to be
such-and-such, (naming a measurement). Whatever loss there
is, is against me and I will fulfill you the specified
amount and whatever excess there is, is mine." Or perhaps
the man proposed, "I will guarantee you from this cloth of
yours so many shirts, the measurement of each shirt to be
such-and-such, and whatever loss there is, is against me
and I will fulfill the specified amount and whatever
excess there is, is mine." Or perhaps a man proposed to a
man who had cattle or camel hides, "I will cut up these
hides of yours into sandals on a pattern I will show you.
Whatever falls short of a hundred pairs, I will make up
its loss and whatever is over is mine because I guaranteed
you." Another example was that a man say to a man who had
ben-nuts, "I will press these nuts of yours. Whatever
falls short of such-and-such a weight by the pound, I will
make it up, and whatever is more than that is mine."
Malik said that all this and whatever else was like it
or resembled it was in the category of muzabana, which was
neither good nor permitted. It was also the same case for
a man to say to a man, who had fodder leaves, date
kernels, cotton, flax, herbs or safflower, "I will buy
these leaves from you in exchange for such-and-such a sa,
(indicating leaves which are pounded like his leaves) . .
or these date kernels for such-and-such a sa of kernels
like them, and the like of that in the case of safflower,
cotton, flax and herbs."
Malik said, "All this is what we have described of
muzabana."
Section: General Remarks about Selling Produce at its
Source
Malik said, "There is no harm in buying dates from
specified trees or a specified orchard or buying milk from
specified sheep when the buyer starts to take them as soon
as he has payed the price. That is like buying oil from a
container. A man buys some of it for a dinar or two and
gives his gold and stipulates that it be measured out for
him. There is no harm in that. If the container breaks and
the oil is wasted, the buyer has his gold back and there
is no transaction between them."
Malik said, "There is no harm in everything which is
taken right away as it is, like fresh milk and fresh
picked dates which the buyer can take on a day-to-day
basis. If the supply runs out before the buyer has what he
has paid for in full, the seller gives him back the
portion of the gold that is owed to him, or else the buyer
takes other goods from him to the value of what he is owed
and which they mutually agree about. The buyer should stay
with the seller until he has taken it. It is disapproved
of for the seller to leave because the transaction would
then come into the forbidden category of a debt for a
debt. If a stated time period for payment or delivery
enters into the transaction, it is also disapproved. Delay
and deferment are not permitted in it, and are only
acceptable when it is standard practice on definite terms
by which the seller guarantees it to the buyer, but this
is not to be from one specific orchard or from any
specific ewes."
Malik was asked about a man who bought an orchard from
another man in which there were various types of
palm-trees - excellent ajwa palms, good kabis palms, adhq
palms and othertypes. The seller kept aside from the sale
the produce of a certain palm of his choice. Malik said,
"That is not good because if he does that, and keeps
aside, for instance, dates of the ajwa variety whose yield
would be 15 sa, and he picks the dates of the kabis in
their place, and the yield of their dates is 10 sa or he
picks the ajwa which yield 15 sa and leaves the kabis
which yield 10 sa, it is as if he bought the ajwa for the
kabis making allowances for their difference of quality.
This is the same as if a man dealing with a man who has
heaps of dates before him - a heap of 15 sa of ajwa, a
heap of 10 sa of kabis, and a heap of 12 sa of cadhq,
gives the owner of the dates a dinar to let him choose and
take whichever of the heaps he likes." Malik said, "That
is not good."
Malik was asked what a man who bought fresh dates from
the owner of an orchard and advanced him a dinar was
entitled to if the crop was spoilt. Malik said, "The buyer
makes a reckoning with the owner of the orchard and takes
what is due to him of the dinar. If the buyer has taken
two-thirds of a dinar's worth of dates, he gets back the
third of a dinar which is owed him. If the buyer has taken
three-quarters of a dinar's worth of dates, then he gets
back the quarter which is owed to him, or they come to a
mutual agreement, and the buyer takes what is owed him
from his dinar from the owner of the orchard in something
else of his choosing. If, for instance, he prefers to take
dry dates or some other goods, he takes them according to
what is due. If he takes dry dates or some other goods, he
should stay with him until he has been paid in full."
Malik said, "This is the same situation as hiring out a
specified riding-camel or hiring out a slave tailor,
carpenter or some other kind of worker or letting a house
and taking payment in advance for the hire of the slave or
the rent of the house or camel. Then an accident happens
to what has been hired resulting in death or something
else. The owner of the camel, slave or house returns what
remains of the rent of the camel, the hire of the slave or
the rent of the house to the one who advanced him the
money, and the owner reckons what will settle that up in
full. If, for instance, he has provided half of what the
man paid for, he returns the remaining half of what he
advanced, or according to whatever amount is due." Malik
said, "Paying in advance for something which is on hand is
only good when the buyer takes possession of what he has
paid for as soon as he hands over the gold, whether it be
slave, camel, or house, or in the case of dates, he starts
to pick them as soon as he has paid the money."
It is not good that there be any deferment or credit in
such a transaction.
Malik said, "An example illustrating what is
disapproved of in this situation is that, for instance, a
man may say that he will pay someone in advance for the
use of his camel to ride in the hajj, and the hajj is
still some time off, or he may say something similar to
that about a slave or a house. When he does that, he only
pays the money in advance on the understanding that if he
finds the camel to be sound at the time the hire is due to
begin, he will take it by virtue of what he has already
paid. If an accident, or death, or something happens to
the camel, then he will get his money back and the money
he paid in advance will be considered as a loan."
Malik said, "This is distinct from someone who takes
immediate possession of what he rents or hires, so that it
does not fall into the category of 'uncertainty,' or
disapproved payment in advance. That is following a common
practice. An example of that is that a man buys a slave,
or slave-girl, and takes possession of them and pays their
price. If something happens to them within the period of
the year indemnification contract, he takes his gold back
from the one from whom he bought it. There is no harm in
that. This is the precedent of the sunna in the matter of
selling slaves."
Malik said, "Someone who rents a specified slave, or
hires a specified camel, for a future date, at which time
he will take possession of the camel or slave, has not
acted properly because he did not take possession of what
he rented or hired, nor is he advancing a loan which the
person is responsible to pay back."
Malik said, "The generally agreed on way of doing
things among us is that some one who buys some fruit,
fresh or dry, should not resell it until he gets full
possession of it. He should not barter things of the same
type, except hand to hand. Whatever can be made into dry
fruit to be stored and eaten, should not be bartered for
its own kind, except hand to hand, like for like, when it
is the same kind of fruit. In the case of two different
kinds of fruit, there is no harm in bartering two of one
kind for one of another, hand to hand on the spot. It is
not good to set delayed terms. As for produce which is not
dried and stored but is eaten fresh like water melon,
cucumber, melon, carrots, citron, medlars, pomegranates,
and soon, which when dried no longer counts as fruit, and
is not a thing which is stored up as is fruit, I think
that it is quite proper to barter such things two for one
of the same variety hand to hand. If no term enters into
it, there is no harm in it."
Section: Selling Gold for Silver, Minted and Unminted
Yahya related to me from Malik that Yahya ibn Said
said, "The Messenger of Allah, mayAllah bless him and
grant him peace, ordered the two Sads to sell a vessel
made of either gold or silver from the booty. They either
sold each three units of weight for four units of weight
of coins or each four units of weight for three units of
weight or coins. The Messenger of Allah, may Allah bless
him and grant him peace, said to them, 'You have taken
usury, so return it.' "
Yahya related to me from Malik from Musa ibn Abi Tamim
from Abu'l Hubab Said ibn Yasar from Abu Hurayra that the
Messenger of Allah, may Allah bless him and grant him
peace, said, "A dinar for a dinar, a dirham for a dirham,
no excess between the two."
Yahya related to me from Malik from Nafi from Abu Said
al-Khudri that the Messenger of Allah, may Allah bless him
and grant him peace, said, "Do not sell gold for gold
except like for like and do not increase one part over
another part. Do not sell silver for silver, except like
for like and do not increase one part over another part.
Do not sell some of it which is not there for some of it
which is."
Yahya related to me from Malik from Humayd ibn Qays
al-Makki that Mujahid said, "I was with Abdullah ibn Umar
and an artisan came to him and said, 'Abu Abd ar-Rahman -
I fashion gold and then sell what I have made for more
than its weight. I take an amount equivalent to the work
of my hand.' Abdullah forbade him to do that, so the
artisan repeated the question to him, and Abdullah
continued to forbid him until he came to the door of the
mosque or to an animal that he intended to mount. Then
Abdullah ibn Umar said, 'A dinar for a dinar, and a dirham
for a dirham. There is no increase between them. This is
the command of ourProphet to us and our advice to you.' "
Yahya related to me from Malik that he had heard from
his grandfather, Malik ibn Abi Amir that Uthman ibn Affan
said, "The Messenger of Allah, may Allah bless him and
grant him peace, said to me, 'Do not sell a dinar for two
dinars nor a dirham for two dirhams.' "
Yahya related to me from Malik from Zayd ibn Aslam from
Ata ibn Yasar that Muawiya ibn Abi Sufyan sold a gold or
silver drinking-vessel for more than its weight.
Abu'dDarda said, "I heard the Messenger of Allah, may
Allah bless him and grant him peace, forbidding such sales
except like for like." Muawiya said to him, "I don't see
any harm in it." Abu'd-Darda said to him, "Who will excuse
me from Muawiya? I tell him something from the Messenger
of Allah, may Allah bless him and grant him peace, and he
gives me his own opinion! I will not live in the same land
as you!" Then Abu'd-Darda went to Umar ibn al-Khattab and
mentioned that to him. Umar ibn al-Khattab therefore wrote
to Muawiya, "Do not sell it except like for like, weight
for weight."
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that Umar ibn al-Khattab said, "Do not sell gold
for gold except like for like, and do not increase one
part over another part. Do not sell silver for silver
except like for like, and do not increase one part over
another part. Do not sell silver for gold, one of them at
hand and the other to be given later. If someone seeks to
delay paying you until he has been to his house, do not
leave him. I fear rama for you." Rama is usury.
Yahya related to me from Malik from Abdullah ibn Dinar
from Abdullah ibn Umar that Umar ibn al-Khattab said, "Do
not sell gold for gold except like for like. Do not
increase part of it over another part. Do not sell silver
for silver except like for like, and do not increase part
of it over another part. Do not sell some of it which is
there for some of it which is not. If someone asks you to
wait for payment until he has been to his house, do not
leave him. I fear rama for you." Rama is usury.
Yahya related to me from Malik that he had heard that
al-Oasim ibn Muhammad said, ''Umar ibn al-Khattab said, 'A
dinar for a dinar, and a dirham for adirham, and a sa for
a sa. Something to be collected later is not to be sold
for something at hand. ' "
Yahya related to me from Malik that Abu'z-Zinad heard
Said ibn al-Musayyab say, "There is usury only in gold or
silver or what is weighed or measured of what is eaten or
drunk."
Yahya related to me from Malik that Yahya ibn Said
heard Said ibn al-Musayyab say, "Keeping gold and silver
out of circulation is part of working corruption in the
land."
Malik said, "There is no harm in buying gold with
silver or silver with gold without measuring if it is
unminted or a piece of jewellery which has been made.
Counted dirhams and counted dinars should not be bought
without reckoning until they are known and counted. To
abandon number and buy them at random would only be to
speculate. That is not part of the business transactions
of Muslims. As for what is weighed of unminted objects and
jewellery, there is no harm in buying such things without
measuring. To buy them without measuring is like buying
wheat, dried dates, and such food-stuffs, which are sold
without measuring, even though things like them are
measured "
Malik spoke about buying a Qur'an, a sword or a signet
ring which had some gold or silver work on it with dinars
or dirhams. He said, "The value of the object bought with
dinars, which has gold in it is looked at. If the value of
the gold is up to one-third of the price, it is permitted
and there is no harm in it if the sale is hand to hand and
there is no deferment in it. When something is bought with
silver which has silver in it, the value is looked at. If
the value of the silver is one-third, it is permitted and
there is no harm in it if the sale is hand to hand. That
is still the way of doing things among us."
Yahya related to me from Malik from Ibn Shihab from
Malik ibn Aus ibn al-Hadathan an-Nasri that one time he
asked to exchange 100 dinars. He said, "Talha ibn
Ubaydullah called me over and we made a mutual agreement
that he would make an exchange for me. He took the gold
and turned it about in his hand, and then said, 'I can't
do it until my treasurer brings the money to me from
al-Ghaba.' Umar ibn al-Khattab was listening and Umar
said, 'By Allah! Do not leave him until you have taken it
from him!' Then he said, 'The Messenger of Allah, may
Allah bless him and grant him peace, said, "Gold for
silver is usury except hand to hand. Wheat for wheat is
usury except hand to hand. Dates for dates is usury except
hand to hand. Barley for barley is usury except hand to
hand." "'
Malik said, "When a man buys dirhams with dinars and
then finds a bad dirham among them and wants to return it,
the exchange of the dinars breaks down, and he returns the
silver and takes back his dinars. The explanation of what
is disapproved of in that is that the Messenger of Allah,
may Allah bless him and grant him peace, said, 'Gold for
silver is usury except hand to hand.' and Umar ibn
al-Khattab said, 'If someone asks you to wait to be paid
until he has gone back to his house, do not leave him.'
When he returns a dirham to him from the exchange after he
has left him, it is like a debt or something deferred. For
that reason, it is disapproved of, and the exchange
collapses. Umar ibn al-Khattab wanted that all gold,
silver and food should not be sold for goods to be paid
later. He did not want there to be any delay or deferment
in any such sale, whether it involved one commodity or
different sorts of commodities."
Section: Selling Gold for Gold and Silver for Silver by
Weight
Yahya related to me from Malik that Yazid ibn Abdullah
ibn Qusayt saw Said ibn al-Musayyab sell gold
counterpoising for gold. He poured his gold into one pan
of the scales, and the man with whom he was counterpoising
put his gold in the other pan of the scale and when the
tongue of the scales was balanced, they took and gave.
Malik said, "According to the way things are done among
us there is no harm in selling gold for gold, and silver
for silver by counterpoising weight, even if 11 dinars are
taken for 10 dinars hand to hand, when the weight of gold
is equal, coin for coin, even if the number is different.
Dirhams in such a situation are treated the same way as
dinars."
Malik said, "If, when counterpoising gold for gold or
silver for silver, there is a difference of weight, one
party should not give the other the value of the
difference in silver or something else. Such a transaction
is ugly and a means to usury because if one of the parties
were permitted to take the difference for a separate
price, it could be as if he had bought it separately, so
he would be permitted. Then it would be possible for him
to ask for many times the value of the difference in order
to permit the completion of the transaction between the
two parties.
Malik said, "If he had really been sold the difference
without anything else with it, he would not have taken it
for a tenth of the price for which he took it in order to
put a 'legal front' on the transaction. This leads to
allowing what is forbidden . The matter is forbidden."
Malik said that it was not good when counterpoising to
give good old gold coins and put along with them unminted
gold in exchange for worn kufic gold, which was unpopular
and to then treat the exchange as like for like.
Malik said, "The commentary on why that is disapproved
is that the owner of the good gold uses the excellence of
his old gold coins as an excuse to throw in the unminted
gold with it. Had it not been for the superiority of his
(good) gold over the gold of the other party, the other
party would not have counterpoised the unminted gold for
his kufic gold, and the deal would have been refused.
"It is like a man wanting to buy three sa of ajwa dried
dates for two sa and a mudd of kabis dates, and on being
told that it was not good, then offering two sa of kabis
and a sa of poor dates desiring to make the sale possible.
That is not good because the owner of the ajwa should not
give him a sa of ajwa for a sa of poor dates. He would
only give him that because of the excellence of kabis
dates.
"Or it is like a man asking some one to sell him three
sa of white wheat for two and a half sa of Syrian wheat,
and being told that it was not good except like for like,
and so offering two sa of wheat and one sa of barley
intending to make the sale possible between them. That is
not good because no one would have given a sa of barley
for a sa of white wheat had that sa been by itself. It was
only given because of the excellence of Syrian wheat over
the white wheat. This is not good. It is the same as the
case of the unminted gold."
Malik said, "Where gold, silver and food, things which
should only be sold like for like, are concerned,
something disliked and of poor quality should not be put
with something good and desirable in order to make the
sale possible and to make a bad situation halal. When
something of desirable quality is put with something of
poor quality and it is only included so that its
excellence in quality is noticed, something is being sold
which if it had been sold on its own, would not have been
accepted and to which the buyer would not have paid any
attention. It is only accepted by the buyer because of the
superiority of what comes with it over his own goods.
Transactions involving gold, silver, or food, must not
have anything of this description enter into them. If the
owner of the poor quality goods wants to sell them, he
sells them on their own, and does not put anything with
them. There is no harm if it is like that."
Section: Buying on Delayed Terms and Re-Selling for Less
on More Immediate Terms
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that the Messenger of Allah, may Allah bless him
and grant him peace, said, "Someone who buys food, must
not resell it until he takes delivery of it all."
Yahya related to me from Malik from Abdullah ibn Dinar
from Abdullah ibn Umar that the Messenger of Allah, may
Allah bless him and grant him peace, said, "Someone who
buys food, must not sell it until he takes possession of
it."
Yahya related to me from Malik from Nafi that Abdullah
ibn Umar said, "In the time of the Messenger of Allah, may
Allah bless him and grant him peace, we used to buy food.
He sent orders for us to move our purchases from the place
in which we purchased them to another place before we
re-sold them."
Yahya related to me from Malik from Nafi that Hakim ibn
Hizam traded in food for people as Umar ibn al-Khattab had
ordered him to do. Hakim re-sold the food before he had
taken delivery of it. That reached Umar ibn al-Khattab and
he revoked the sale and said, "Do not sell food which you
have purchased until you take delivery of it."
Yahya related to me from Malik that he had heard that
receipts were given to people in the time of Marwan ibn
al-Hakam for the produce of the market at al-Jar. People
bought and sold the receipts among themselves before they
took delivery of the goods. Zayd Thabit and one of the
Companions of the Messenger of Allah, may Allah bless him
and grant him peace, went to Marwan ibn al-Hakam and said,
"Marwan! Do you make usury halal?" He said, "I seek refuge
with Allah! What is that?" He said, "These receipts which
people buy and sell before they take delivery of the
goods." Marwan therefore sent a guard to follow them and
to take them from people's hands and return them to their
owners.
Yahya related to me from Malik that he had heard that a
man wanted to buy food from a man in advance. The man who
wanted to sell the food to him went with him to the
market, and he began to show him heaps, saying, "Which one
would you like me to buy for you." The buyer said to him,
"Are you selling me what you do not have?" So they came to
Abdullah ibn Umarand mentioned that to him. Abdallah ibn
Umar said to the buyer, "Do not buy from him what he does
not have." He said to the seller, "Do not sell what you do
not have."
Yahya related to me from Malik that Yahya ibn Said
heard Jamil ibn Abd ar-Rahman the Muadhdhin say to Said
ibn al-Musayyab, "I am a man who buys whatever Allah wills
of the receipts for the provisions which people are
offered at al-Jar. I want to take payment for goods that I
guarantee to deliver at a future date." Said said to him,
"Do you intend to settle these things with receipts for
provisions you have bought?" He said, "Yes." So he forbade
that.
Malik said, "The generally agreed on way of doing
things among us in which there is no dispute, about buying
food - wheat, barley, durra-sorghum, pearl millet, or any
pulse or anything resembling pulses on which zakat is
obliged, or condiments of any sort - oil, ghee, honey,
vinegar, cheese, sesame oil, milk and so on, is that the
buyer should not re-sell any of that until he has taken
possession and complete delivery of it.
Section: What is Disapproved in Selling Food with
Delayed Payment or Delivery
Yahya related to me from Malik that Abu'z-Zinad heard
Sa'id ibn al-Musayyab andSulayman ibn Yasar forbid a man
to sell wheat for gold on delayed terms and then to buy
dried dates with the gold before he had taken delivery of
the gold.
Yahya related to me from Malik that Kathir ibn Farqad
asked Abu Bakr ibn Muhammad ibn Amr ibn Hazm about a man
who sold food to be delivered at a future date to a man
for gold and then with the gold, he bought dates before he
had taken delivery of the gold. He disapproved of that and
forbade it.
Yahya related to me from Malik from Ibn Shihab the like
of that.
Malik said, ''Said ibn al-Musayyab, Sulayman ibn Yasar,
Abu Bakr ibn Muhammad ibn Amr ibn Hazm, and Ibn Shihab
forbade that a man sell wheat for gold and then buy dates
with that gold before he had received the gold from the
transaction in which he sold the wheat. There is no harm
for someone to buy dates on delayed terms, on the strength
of the gold for which he sold the wheat, from someone
other than the person to whom he sold the wheat before
taking possession of the gold, and to refer the one from
whom he bought the dates to his debtor who bought the
wheat, for the gold he is owed for the dates."
Malik said, "I asked more than one of the people of
knowledge about that and they did not see any harm in it."
Yahya related to me from Malik from Nafi that Abdullah
ibn Umar said that there was no harm in a man making an
advance to another man for food, with a set description
and price until a set date, as long as it was not in
crops, or dates which had not begun to ripen.
Malik said, "The way of doing things among us
concerning someone who makes an advance for foodstuffs at
a known rate until a stated date, and the date arrives and
he finds that there is not enough of what he was sold with
the seller to fulfill his order, and so he revokes the
sale, is that he must only take back the silver, gold, or
price which he paid exactly. He does not buy anything else
from the man for the same price until he has got back what
he paid. That is because if he took something else besides
the price which he paid him or exchanged it for goods
other than the goods which he bought from him, it would be
selling food before getting delivery of it."
Malik said, "The Messenger of Allah, may Allah bless
him and grant him peace, forbade selling food before
getting delivery of it."
Malik said that it was not good if the buyer regretted
his purchase and asked the seller to revoke the sale for
him and he would not press him immediately for what he had
paid. The people of knowledge forbade that. That was
because when the food was made ready for the buyer by the
seller, the buyer deferred his due from the seller in
order that he might revoke the sale for him. That was the
sale of food with delayed terms before taking delivery of
the food.
Malik said, "The explanation of that is that when the
date of delivery comes and the buyer dislikes the food,
the seller takes by it money to be paid later and so it is
not revocation. Revocation is that in which neither the
buyer nor the seller is increased. When increase occurs by
deferment of payment for a time period, or by anything
which increases one of them over the other or anything
which gives one of them profit, it is not revocation. When
either of them do that, revocation becomes a sale. There
is an indulgence for revocation, partnership, and
transfer, as long as i ncrease, decrease, or deferment
does not come into them. If increase, decrease, or
deferment comes into it, it becomes a sale. Whatever makes
a sale halal makes it halal and whatever makes a sale
haram makes it haram."
Malik said, "If someone pays in advance for Syrian
wheat, there is no harm if he takes a load after the term
falls due."
Malik said, "It is the same with whoever advances for
any kind of thing. There is no harm in him taking better
than whatever he has made an advance for or worse than it
after the agreed delivery date. The explanation of that is
that if, for instance, a man advances for a certain weight
of wheat. There is no harm if he decides to take some
barley or Syrian wheat. If he has made an advance for good
dates, there is no harm if he decides to take poor quality
dates. If he paid in advance for red raisins, there is no
harm if he takes black ones, when it happens after the
agreed delivery date, and when the measure of what he
takes is like the measure of what he paid for in advance."
Section: Bartering Food for Food with No Increase
between Them
Yahya related to me from Malik that he had heard that
Sulayman ibn Yasar said, "The fodder of the donkeys of
Saad ibn Abi Waqqas ran out and so he told his slave to
take some of the family's wheat and buy barley with it,
and to only take a like quantity."
Yahya related to me from Malik from Nafi that Sulayman
ibn Yasar told him that one time the fodder of the animals
of Abd ar-Rahman ibn al-Aswad ibn Abd Yaghuth was finished
so he said to his slave, "Take some of your family's wheat
as food and buy with it barley, and take only a like
quantity.' "
Yahya related to me from Malik that he had heard the
same as that from al-Qasim ibn Muhammad from Ibn Muayqib
ad-Dawsi.
Malik said, "This is the way of doing things among us .
"
Malik said, "The generally agreed on way of doing
things among us is that wheat is not sold for wheat, dates
for dates, wheat for dates, dates for raisins, wheat for
raisins, nor any kind of food sold for food at all, except
from hand to hand. If there is any sort of delayed terms
in the transaction, it is not good. It is haram.
Condiments are not bartered except from hand to hand."
Malik said, "Food and condiments are not bartered when
they are the same type, two of one kind for one of the
other. A mudd of wheat is not sold for two mudds of wheat,
nor a mudd of dates for two mudds of dates, nor a mudd of
raisins for two mudds of raisins, nor is anything of that
sort done with grains and condiments when they are of one
kind, even if it is hand to hand.
"This is the same position as silver for silver and
gold for gold. No increase is halal in the transaction,
and only like for like, from hand to hand is halal."
Malik said, "If there is a clear difference in
foodstuffs which are measured and weighed, there is no
harm in taking two of one kind for one of another, hand to
hand. There is no harm in taking a sa of dates for two sa
of wheat, and a sa of dates for two sa of raisins, and a
sa of wheat for two sa of ghee. If the two sorts in the
transaction are different, there is no harm in two for one
or more than that from hand to hand. If delayed terms
enter into the sale, it is not halal ."
Malik said, "It is not halal to trade a heap of wheat
for a heap of wheat. There is no harm in a heap of wheat
for a heap of dates, from hand to hand. That is because
there is no harm in buying wheat with dates without
precise measurement."
Malik said, "With kinds of foods and condiments that
differ from each other, and the difference is clear, there
is no harm in bartering one kind for another, without
precise measurement from hand to hand. If delayed terms
enter into the sale, there is no good in it. Bartering
such things without precise measurement is like buying it
with gold and silver without measuring precisely."
Malik said, "That is because you buy wheat with silver
without measuring precisely, and dates with gold without
measuring precisely, and it is halal. There is no harm in
it."
Malik said, "It is not good for someone to make a heap
of food, knowing its measure and then to sell it as if it
had not been measured precisely, concealing its measure
from the buyer. If the buyer wants to return that food to
the seller, he can, because he concealed its measure and
so it is an uncertain transaction. This is done with any
kind of food or other goods whose measure and number the
seller knows, and which he then sells without measurement
and the buyer does not know that. If the buyer wants to
return that to the seller, he can return t. The people of
knowledge still forbid such a transaction."
Malik said, "There is no good in selling one round loaf
of bread for two round loaves, nor large for small when
some of them are bigger than others. When care is taken
that they are like for like, there is no harm in the sale,
even if they are not weighed."
Malik said, "It is not good to sell a mudd of butter
and a mudd of milk for two mudds of butter. This is like
what we described of selling dates when two sa of kabis
and a sa of poor quality dates were sold for three sa of
ajwa dates after the buyer had said to the seller, 'Two sa
of kabis dates for three sa of ajwa dates is not good,'
and then he did that to make the transaction possible. The
owner of the milk puts the milk with his butter so that he
can use the superiority of his butter over the butter of
the other party to put his milk in with it."
Malik said, "Flour for wheat is like for like, and
there is no harm in that. That is if he does not mix up
anything with the flour and sell it for wheat, like for
like. Had he put half a mudd of flour and half of wheat,
and then sold that for a mudd of wheat, it would be like
what we described, and it would not be good because he
would want to use the superiority of his good wheat to put
flour along with it. Such a transaction is not good."
Yahya related to me from Malik that Muhammad ibn
Abdullah ibn Abi Maryam asked Said ibn al-Musayyab's
advice. "I am a man who buys food with receipts from
al-Jar. Perhaps I will buy something for a dinar and half
a dirham, and will be given food for a half." Said said,
"No. You give a dirham, and take the rest in food." (A
half dirham did not exist as a coin.)
Yahya related to me from Malik that he had heard that
Muhammad Sirin used to say, "Do not sell grain on the ears
until it is white."
Malik said, "If someone buys food for a known price to
be delivered at a stated date, and when the date comes,
the one who owes the food says, 'I do not have any food,
sell me the food which I owe you with delayed terms.' The
owner of the food says, 'This is not good, because the
Messenger of Allah, may Allah bless him and grant him
peace, forbade selling food until the deal was completed.'
The one who owes the food says to his creditor, 'Sell me
any kind of food on delayed terms until I discharge the
debt to you.' This is not good because he gives him food
and then he returns it to him. The gold which he gave him
becomes the price of that which is his right against him
and the food which he gave him becomes what clears what is
between them. If they do that, it becomes the sale of food
before the deal is complete."
Malik spoke about a man who was owed food which he had
purchased from a man and this man was owed the like of
that food by another man. The one who owed the food said
to his creditor, "I will refer you to my debtor who owes
me the same amount of food as I owe you, so that you may
obtain the food which I owe you ."
Malik said, "If the man who had to deliver the food,
had gone out, and bought the food to pay off his creditor,
that is not good. That is selling food before taking
possession of it. If the food is an advance which falls
due at that particular time, there is no harm in paying
off his creditor with it because that is nota sale. It is
not halal to sell food before receiving it in full since
the Messenger of Allah, may Allah bless him and grant him
peace, forbade that. However, the people of knowledge
agree that there is no harm in partnership, transfer of
responsibility and revocation in sales of food and other
goods."
Malik said, "That is because the people of knowledge
consider it as a favour rendered. They do not consider it
as a sale. It is like a man lending light dirhams. He is
then paid back in dirhams of full weight, and so gets back
more than he lent. That is halal for him and permitted.
Had a man bought defective dirhams from him as being the
full weight, that would not be halal. Had it been
stipulated to him that he lend full weight in dirhams, and
then he gave faulty ones, that would not be halal for
him."
Malik said, "Another example of that is that the
Messenger of Allah, may Allah bless him and grant him
peace, forbade the sale called muzabana and granted an
indulgence in the ariya for computing the equivalent in
dates. It was distinguished between them that the
muzabana-sale was based on shrewdness and trade, and the
ariya sale was based on a favour rendered, and there was
no shrewdness in it."
Malik said, "A man must not buy food for a fourth, a
third, or a fraction of a dirham on the basis that he be
given that food on credit. There is no harm in a man
buying food for a fraction of a dirham on credit and then
he gives a dirham and takes goods with what remains of his
dirham because he gave the fraction he owed as silver, and
took goods to make up the rest of his dirham. There is no
harm in that transaction."
Malik said, "There is no harm in a man placing a dirham
with another man and then taking from him known goods for
a fourth, third, or a known fraction. If there was not a
known price on the goods and the man said, 'I will take
them from you for the price of each day,' this is not
halal because there is uncertainty. It might be less one
time, and more another time, and they would not part with
a known sale."
Malik said, "If someone sells some food without
measuring precisely and does not exclude any of it from
the sale and then it occurs to him to buy some of it, it
is not good for him to buy any of it except what it would
be permitted for him to exclude from it. That is a third
or less. If it is more than a third, it becomes muzabana
and is disapproved. He must only purchase from what he
would be permitted to exclude, and he is only permitted to
exclude a third or less than that. This is the way of
doing things in which there is no dispute with us."
Section: Hoarding and Raising Prices by Stock-Piling
Yahya related to me from Malik that he had heard that
Umar ibn al-Khattab said, "There is no hoarding in our
market, and men who have excess gold in their hands should
not buy up one of Allah's provisions which he has sent to
our courtyard and then hoard it up against us. Someone who
brings imported goods through great fatigue to himself in
the summer and winter, that person is the guest of Umar.
Let him sell what Allah wills and keep what Allah wills."
Yahya related to me from Malik from Yunus ibn Yusuf
from Said ibn al-Musayyab that Umar ibn al-Khattab passed
by Hatab ibn Abi Baltaa who was underselling some of his
raisins in the market. Umar ibn al-Khattab said to him,
"Either increase the price or leave our market."
Yahya related to me from Malik from Salih ibn Kaysan
from Hasan ibn Muhammad ibn Ali ibn Abi Talib that Ali ibn
Abi Talib sold one of his camels called Usayfir for 20
camels to be delivered later.
Yahya related to me from Malik from Nafi that Abdullah
ibn Umar bought a female riding-camel for four camels and
he guaranteed to give them in full to the buyer at
ar-Rabadha.
Yahya related to me that Malik asked Ibn Shihab about
selling animals, two for one with delayed terms. He said,
"There is no harm in it."
Malik said, "The generally agreed on way of doing
things among us is that there is no harm in bartering a
camel for a camel like it and adding some dirhams to the
exchange, from hand to hand. There is no harm in bartering
a camel for a camel like it with some dirhams on top of
the exchange, the camels to be exchanged from hand to
hand, and the dirhams to be paid within a period." He
said, "There is no good however in bartering a camel for a
camel like it with some dirhams on top of it, with the
dirhams paid in cash and the camel to be delivered later.
If both the camel and the dirhams are deferred there is no
good in that either."
Malik said, "There is no harm in buying a riding camel
with two or more pack-camels, if they are from inferior
stock. There is no harm in bartering two of them for one
with delayed terms, if they are different and their
difference is clear. If they resemble each other whether
their species are different or not, two are not to be
taken for one with delayed terms."
Malik said, "The explanation of what is disapproved of
in that, is that a camel should not be bought with two
camels when there is no distinction between them in speed
or hardiness. If this is according to what I have
described to you, then one does not buy two of them for
one with delayed terms. There is no harm in selling those
of them you buy before you complete the deal to somebody
other than the one from whom you bought them if you get
the price in cash."
Malik said, "It is permitted for someone to advance
something on animals for a fixed term and describe the
amount and pay its price in cash. Whatever the buyer and
seller have described is obliged for them. That is still
permitted behaviour between people and what the people of
knowledge in our land do."
Section: What Is Not Permitted in the Sale of Animals
Yahya related to me from Malih from Nafi from Abdullah
ibn Umar that the Messenger of Allah, may Allah bless him
and grant him peace, forbade the transaction called habal
alhabala. It was a transaction which the people of
Jahiliya practised. A man would buy the unborn offspring
of the unborn offspring of a she-camel.
Yahya related to me from Malik from Ibn Shihab that
Said ibn al-Musayyab said, "There is no usury in animals.
There are three things forbidden in animals: al-madamin,
al-malaqih and habal al-habala. Al-madamin is the sale of
what is in the wombs of female camels. Al-malaqih is the
sale of the breeding qualities of camels" (i.e. for stud).
Malik said, "No one should buy a specified animal when
it is concealed from him or in another place, even if he
has already seen it, very recently or not so recently, and
was pleased enough with it to pay its price in cash."
Malik said, "That is disapproved of because the seller
makes use of the price and it is not known whether or not
those goods are found to be as the buyer saw them or not.
For that reason, it is disapproved of. There is no harm in
it if it is described and guaranteed."
Yahya related to me from Malik from Zayd ibn Aslam from
Said ibn al-Musayyab that the Messenger of Allah, may
Allah bless him and grant him peace, forbade bartering
live animals for meat.
Yahya related to me from Malik from Da'ud ibn al-Husayn
that he heard Said ibn alMusayyab say, "Part of the
gambling of the people of Jahiliya was bartering live
animals for slaughtered meat, for instance one live sheep
for two slaughtered sheep."
Yahya related to me from Malik from Abu'z-Zinad that
Said ibn al-Musayyab said, "Bartering live animals for
dead meat is forbidden." Abu'z-Zinad said, "I said to Said
ibn Musayyab, 'What do you think of a man buying an old
camel for 10 sheep?' " Said said, "If he buys it to
slaughter it, there is no good in it." Abu'z-Zinad added,
"All the people (i.e. companions) that I have seen forbade
bartering live animals for meat."
Abu'z-Zinad said, "This used to be written in the
appointment letters of governors in the time of Aban ibn
Uthman and Hisham ibn Ismail."
Malik said, "It is the generally agreed on way of doing
things among us that the meat of camels, cattle, sheep and
so on is not to be bartered one for one, except like for
like, weight for weight, from hand to hand. There is no
harm in that. If it is not weighed, then it is estimated
to be like for like from hand to hand."
Malik said, "There is no harm in bartering the meat of
fish for the meat of camels, cattle, and sheep and so on
two or more for one, from hand to hand. If delayed terms
enter the transaction however, there is no good in it."
Malik said, "I think that poultry is different from the
meat of cattle and fish. I see no harm in selling some of
it for something different, more of one than another, from
hand to hand. None of that is to be sold on delayed
terms."
Yahya related to me from Malik from Ibn Shihab from Abu
Bakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham from Abu
Masud al-Ansari that the Messenger of Allah, may Allah
bless him and grant him peace, forbade the sale price of a
dog, the earnings of a prostitute and the earnings of a
fortune teller.
By the earnings of a prostitute he meant what a woman
was given for fornication. The earnings of a fortune
teller were what he was given to tell a fortune.
Malik said, "I disapprove of the price of a dog,
whether it is a hunting dog or otherwise because the
Messenger of Allah, may Allah bless him and grant him
peace, forbade the price of a dog."
Section: Advance and Sale of Some Goods for Others
Yahya related to me from Malik that he had heard that
the Messenger of Allah, may Allah bless him and grant him
peace, forbade 'selling and lending.'
Malik said, "The explanation of what that meant is that
one man says to another, 'I will take your goods for
such-and-such if you lend me such-and-such.' If they agree
to a transaction in this manner, it is not permitted. If
the one who stipulates the loan abandons his stipulation,
then the sale is permitted."
Malik said, "There is no harm in exchanging linen from
Shata, for garments from Itribi, or Qass, or Ziqa. Or the
cloth of Herat or Merv for Yemeni cloaks and shawls and
such like as one for two or three, from hand to hand or
with delayed terms. If the goods are of the same kind, and
deferment enters into the transaction, there is no good in
it."
Malik said, "It is not good unless they are different,
and the difference between them is clear. When they
resemble each other, even if the names are different, do
not take two for one with delayed terms, for instance two
garments of Herat for one from Merv or Quhy with delayed
terms, ortwo garments of Furqub for one from Shata. All
these sorts are of the same description, so do not buy two
for one, on delayed terms."
Malik said, "There is no harm in selling what you buy
of things of this nature, before you complete the deal, to
some one other than the person from whom you purchased
them if the price was paid in cash."
Yahya related to me from Malik from Yahya ibn Said that
al-Qasim ibn Muhammad said, ''I heard Abdullah ibn Abbas
say, when a man asked him about a man making an advance on
some garments and then wanting to sell them back before
taking possession of them, 'That is silver for silver,'
and he disapproved of it."
Malik said, "Our opinion is - and Allah knows best that
was because he wanted to sell them to the person from whom
he had bought them for more than the price for which he
bought them. Had he sold them to some one other than the
person from whom he had purchased them, there would not
have been any harm in it."
Malik said, "The generally agreed on way of doing
things among us concerning making an advance for slaves,
cattle or goods is that when all of what is to be sold is
described and an advance is made for them for a date, and
the date falls due, the buyer does not sell any of that to
the person from whom he has purchased it for more than the
price which he advanced for it before he has taken full
possession of what he has advanced for. It is usury if he
does. If the buyer gives the seller dinars or dirhams and
he profits with them, then, when the goods come to the
buyer and he does not take them into his possession but
sells them back to their owner for more than what he
advanced for them, the outcome is that what he has
advanced has returned to him and has been increased for
him."
Malik said, "If someone advances gold or silver for
described animals or goods which are to be delivered
before a named date, and the date arrives, or it is before
or after the date, there is no harm in the buyer selling
those goods to the seller, for other goods, to be taken
immediately and not delayed, no matter how extensive the
amount of those goods is, except in the case of food
because it is not halal to sell it before he has full
possession of it. The buyer can sell those goods to some
one other than the person from whom he purchased them for
gold or silver or any goods. He takes possession of it and
does not defer it because if he defers it, that is ugly
and there enters into the transaction what is disapproved
of: delay for delay. Delay for delay is to sell a debt
against one man for a debt against another man."
Malik said, "If someone advances for goods to be
delivered after a time, and those goods are neither
something to be eaten nor drunk, he can sell them to
whomever he likes for cash or goods, before he takes
delivery of them, to some one other than the person from
whom he purchased them. He must not sell them to the
person from whom he bought them except in exchange for
goods which he takes possession of immediately and does
not defer."
Malik said, "If the delivery date for the goods has not
arrived, there is no harm in selling them to the original
owner for goods which are clearly different and which he
takes immediate possession of and does not defer."
Malik spoke about the case of a man who advanced dinars
or dirhams for four specified pieces of cloth to be
delivered before a specified time and when the term fell
due, he demanded delivery from the seller and the seller
did not have them. He found that the seller had cloth but
inferior quality, and the seller said that he would give
him eight of those cloths. Malik said, "There is no harm
in that if he takes the cloths which he offers him before
they separate. It is not good if delayed terms enter into
the transaction. It is also not good if that is before the
end of the term, unless he sells him cloth which is
notthetypeof cloth for which he made an advance.
Section: Selling Copper and Iron and Such Things which
are Weighed
Malik said, "The generally agreed on way of doing
things among us about whatever is weighed but is not gold
or silver, i.e. copper, brass, lead, black lead, iron,
herbs, figs, cotton, and any such things that are weighed,
is that there is no harm in bartering all those sorts of
things two for one, hand to hand. There is no harm in
taking a ritl of iron for two ritls of iron, and a ritl of
brass for two ritls of brass."
Malik said, "There is no good in two for one of one
sort with delayed terms. There is no harm in taking two of
one sort for one of another on delayed terms, if the two
sorts are clearly different. If both sorts resemble each
other but their names are different, like lead and black
lead, brass and yellow brass, I disapprove of taking two
of one sort for one of the other on delayed terms."
Malik said, "When buying something of this nature,
there is no harm in selling It beforetaking possession of
it to some one other than the person from whom it was
purchased, if the price is taken immediately and if it was
bought originally by measure or weight. If it was bought
without measuring, it should be sold to someone other than
the person from whom it was bought, for cash or with
delayed terms. That is because goods have to be guaranteed
when they are bought without measuring, and they cannot be
guaranteed when bought by weight until they are weighed
and the deal is completed. This is the best of what I have
heard about all these things. It is what people continue
to do among us."
Malik said, "The way of doing things among us with what
is measured or weighed of things which are not eaten or
drunk, like safflower, date-stones, fodder leaves, indigo
dye and the like of that is that there is no harm in
bartering all those sort of things two for one, hand to
hand. Do not take two for one from the same variety with
delayed terms. If the types are clearly different, there
is no harm in taking two of one for one of the other with
delayed terms. There is no harm in selling whatever is
purchased of all these sorts, before taking delivery of
them if the price is taken from someone other than the
person from whom they were purchased."
Malik said, "Anything of any variety that profits
people, like gravel and gypsum, one quantity of them for
two of its like with delayed terms is usury. One quantity
of both of them for its equal plus any increase with
delayed terms, is usury."
Section: Prohibition against Two Sales in One Sale
Yahya related to me from Malik that he had heard that a
man said to another, "Buy this camel for me immediately so
that I can buy him from you on credit." Abdullah ibn Umar
was asked about that and he disapproved of it and forbade
it.
Yahya related to me from Malik that he had heard that
al-Qasim ibn Muhammad was asked about a man who bought
goods for 10 dinars cash or fifteen dinars on credit. He
disapproved of that and forbade it.
Malik said that if a man bought goods from a man for
either 10 dinars or 15 dinars on credit, that one of the
two prices was obliged on the buyer. It was not to be done
because if he postponed paying the ten, it would be 15 on
credit, and if he paid the ten, he would buy with it what
was worth fifteen dinars on credit.
Malik said that it was disapproved of for a man to buy
goods from someone for either a dinar cash or for a
described sheep on credit and that one of the two prices
was obliged on him. It was not to be done because the
Messenger of Allah, may Allah bless him and grant him
peace, forbade two sales in one sale. This was part of two
sales in the one sale.
Malik spoke about a man saying to another, "'I will
either buy these fifteen sa of ajwa dates from you, or
these ten sa of sayhani dates or I will buy these fifteen
sa of inferior wheat or these ten sa of Syrian wheat for a
dinar, and one of them is obliged to me.' Malik said that
it was disapproved of and was not halal. That was because
he obliged him ten sa of sayhani, and left them and took
fifteen sa of ajwa, or he was obliged fifteen sa of
inferior wheat and left them and took ten sa of Syrian
wheat. This was also disapproved of, and was not halal. It
resembled what was prohibited in the way of two sales in
one sale. It was also included under the prohibition
against buying two for one of the same sort of food."
Yahya related to me from Malik from Abu Hazim ibn Dinar
from Said ibn al-Musayyab that the Messenger of Allah, may
Allah bless him and grant him peace, forbade the sale with
uncertainty in it.
Malik said, "An example of one type of uncertain
transaction and risk is that a man intends the price of a
stray animal or escaped slave to be fifty dinars. A man
says, 'I will take him from you for twenty dinars.' If the
buyer finds him, thirty dinars goes from the seller, and
if he does not find him, the seller takes twenty dinars
from the buyer."
Malik said, "There is another fault in that. If that
stray is found, it is not known whether it will have
increased or decreased in value or what defects may have
befallen it. This transaction is greatly uncertain and
risky."
Malik said, "According to our way of doing things, one
kind of uncertain transaction and risk is selling what is
in the wombs of females - women and animals - because it
is not known whether or not it will come out, and if it
does come out, it is not known whether it will be
beautiful or ugly, normal or disabled, male or female. All
that is disparate. If it has that, its price is
such-and-such, and if it has this, its price is
such-and-such."
Malik said, "Females must not be sold with what is in
their wombs excluded. That is that, for instance, a man
says to another, 'The price of my sheep which has much
milk is three dinars. She is yours for two dinars while I
will have her future offspring.' This is disapproved
because it is an uncertain transaction and a risk."
Malik said, "It is not halal to sell olives for olive
oil or sesame for sesame oil, or butter for ghee because
muzabana comes into that, because the person who buys the
raw product for something specified which comes from it,
does not know whether more or less will come out of that,
so it is an uncertain transaction and a risk."
Malik said, "A similar case is the selling of ben-nuts
for ben-nut oil. This is an uncertain transaction because
what comes from the ben-nut is ben-oil. There is no harm
in selling ben-nuts for perfumed ben because perfumed ben
has been perfumed, mixed and changed from the state of raw
ben-nut oil."
Malik, speaking about a man who sold goods to a man on
the provision that there was to be no loss for the buyer,
(i.e. if the buyer could not re-sell the goods they could
go back to the seller), said, "This transaction is not
permitted and it is part of risk. The explanation of why
it is so, is that it is as if the seller hired the buyer
for the profit if the goods make a profit. If he sells the
stock at a loss, he has nothing, and his efforts are not
compensated. This is not good. In such a transaction, the
buyer should have a wage according to the work that he has
contributed. Whatever there is of loss or profit in those
goods is for and against the seller. This is only when the
goods are gone and sold. If they do not go, the
transaction between them is null and void."
Malik said, "As for a man who buys goods from a man and
he concludes the sale and then the buyer regrets and asks
to have the price reduced and the seller refuses and says,
'Sell it and I will compensate you for any loss.' There is
no harm in this because there is no risk. It is something
he proposes to him, and their transaction was not based on
that. That is what is done among us."
Yahya related to me from Malik from Muhammad ibn Yahya
ibn Habban and from Abu'z-Zinad from al-Araj from Abu
Hurayra that the Messenger of Allah, may Allah bless him
and grant him peace, forbade mulamasa and munabadha.
Malik said, "Mulamasa is when a man can feel a garment
but is not allowed to unfold it or examine what is in it,
or he buys by night and does not know what is in it.
Munabadha is that a man throws his garment to another, and
the other throws his garment without either of them making
any inspection. Each of them says, 'this is for this.
'This is what is forbidden of mulamasa and munabadha."
Malik said that selling bundles with a list of their
contents was different from the sale of the cloak
concealed in a bag or the cloth folded up and such things.
What made it different was that it was a common practice
and it was what people were familiar with, and what people
had done in the past, and it was still among the permitted
transactions and trading of people in which they saw no
harm because in the sale of bundles with a list of
contents without undoing them, an uncertain transaction
was not intended and it did not resemble mulamasa.
Yahya related to me, that Malik said, "The generally
agreed on way of doing things among us about a man buying
cloth in one city, and then taking it to another city to
sell as a murabaha, is that he is not reckoned to have the
wage of an agent, or any allowance for ironing, folding,
straightening, expenses, or the rent of a house. As for
the cost of transporting the drapery, it is included in
the basic price, and no share of the profit is allocated
to it unless the agent tells all of that to the investor.
If they agree to share the profits accordingly after
knowledge of it, there is no harm in that."
Malik said, "As for bleaching, tailoring, dyeing, and
such things, they are treated in the same way as drapery.
The profit is reckoned in them as it is reckoned in
drapery goods. So if he sells the drapery goods without
clarifying the things we named as not getting profit, and
if the drapery has already gone, the transport is to be
reckoned, but no profit is given. If the drapery goods
have not gone the transaction between them is null and
void unless they make a new mutual agreement on what is to
be permitted between them ."
Malik spoke about an agent who bought goods for gold or
silver, and the exchange rate on the day of purchase was
ten dirhams to the dinar. He took them to a city to sell
murabaha, or sold them where he purchased them according
to the exchange rate of the day on which he sold them. If
he bought them for dirhams and he sold them for dinars, or
he bought them for dinars and he sold them for dirhams,
and the goods had not gone then he had a choice. If he
wished, he accepted to sell the goods and if he wished, he
left them. If the goods had been sold, he had the price
for which the salesman bought them, and the salesman was
reckoned to have the profit on what they were bought for,
over what the investor gained as profit.
Malik said, "If a man sells goods worth one hundred
dinars for one hundred and ten, and he hears after that
they are worth ninety dinars, and the goods have gone, the
seller has a choice. If he likes, he has the price of the
goods on the day they were taken from him unless the price
is more than the price for which he was obliged to sell
them in the first place, and he does not have more than
that - and it is one hundred and ten dinars. If he likes,
it is counted as profit against ninety unless the price
his goods reached was less than the value. He is given the
choice between what his goods fetch and the capital plus
the profit, which is ninety-nine dinars."
Malik said, "If someone sells goods in murabaha and he
says, 'It was valued at one hundred dinars to me.' Then he
hears later on, that it was worth one hundred and twenty
dinars, the customer is given the choice. If he wishes, he
gives the salesman the value of the goods on the day he
took them, and if he wishes, he gives the price for which
he bought them according to the reckoning of what profit
he gives him, as far as it goes, unless that is less than
the price for which he bought them, for he should not give
the owner of the goods a loss from the price for which he
bought them because he was satisfied with that. The owner
of the goods came to seek extra, so the buyer has no
argument against the salesman in that to make a reduction
from the first price for which he bought it according to
the list of contents."
Malik spoke about what was done among them in the case
of a group of people who bought goods, drapery or slaves,
and a man heard about it and said to one of the group, "I
have heard the description and situation of the drapery
goods you bought from so-and-so. Shall I give you
such-and-such profit to take over your portion?" This
person agreed, and the man gave him the profit and became
a partner in his place. When he looked at the purchase, he
saw that it was ugly and found it too expensive.
Malik said, "It is obliged on him and there is no
choice in it for him if he bought it according to a list
of contents and the description was well-known."
Malik spoke about a man who had drapery goods sent to
him, and salesmen came to him and he read to them his list
of contents and said, "In each bag is such-and-such a wrap
from Basra and such-and-such a light wrap from Sabir.
Their size is such-and-such," and he named to them types
of drapery goods by their sort, and he said, "Buy them
from me according to this description." They bought the
bags according to what he described to them, and then they
bought them and found them too expensive and regretted it.
Malik said, "The sale is binding on them, if the goods
agree with the list of contents on which he sold them."
Malik said, "This is the way of doing things which
people still use today. They permit the sale among them
when the goods agree with the list of contents and are not
different from it. "
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that the Messenger of Allah, may Allah bless him
and grant him peace, said, "Both parties in a business
transaction have the right of withdrawal as long as they
have not separated, except in the transaction called
khiyar."
Malik said, "There is no specified limit nor any matter
which is applied in this case according to us."
Malik related to me that he had heard that Abdullah ibn
Masud used to relate that the Messenger of Allah, may
Allah bless him and grant him peace, said, "When two
parties dispute about a business transaction, the seller's
word is taken, or they make an agreement among themselves.
Malik spoke about someone who sold goods to a man, and
said at the contracting of the sale, 'I will sell to you
provided I consult so-and-so. If he is satisfied, the sale
is permitted. If he dislikes it, there is no sale between
us.' They made the transaction on that basis. Then the
buyer regretted before the seller consulted the person.
Malik said, "That sale is binding on them according to
what they described. The buyer has no right of withdrawal,
and it is binding on him, if the person whom the seller
stipulated to him, permits it."
Malik said, "The way of doing things among us about a
man who buys goods from another and they differ about the
price, and the seller says, 'I sold them to you for ten
dinars,' and the buyer says, 'I bought them from you for
five dinars,' is that it is said to the seller, 'If you
like, give them to the buyer for what he said. If you
like, swear by Allah that you only sold your goods for
what you said.' If he swears it is said to the buyer,
'Either you take the goods for what the seller said, or
you swear by Allah that you bought them only for what you
said.' If he swears, he is free to return the goods. That
is when each of them testifies against the other."
Yahya related to me from Malik from Abu'z-Zinad from
Busr ibn Said from Ubayd, Abu Salih, the mawla of
as-Saffah that he said, "I sold drapery to the people of
Dar Nakhla on credit. Then I wanted to go to Kufa, so they
proposed that I reduce the price for them and they would
pay me immediately . I asked Zayd ibn Thabit about that,
and he said, 'I order you not to accept increase or to
give to anybody.' "
Yahya related to me from Malik from Uthman ibn Hafs ibn
Khalda from Ibn Shihab from Salim ibn Abdullah that
Abdullah ibn Umar was asked about a man who took a loan
from another man for a set term. The creditor reduced the
debt, and the man paid it immediately Abdullah ibn Umar
disliked that, and forbade it.
Malik related to me that Zayd ibn Aslam said, "Usury in
the Jahiliyya was that a man would give a loan to a man
for a set term. When the term was due, he would say, 'Will
you pay it off or increase me?' If the man paid, he took
it. If not, he increased him in his debt and lengthened
the term for him ."
Malik said, "The disapproved of way of doing things
about which there is no dispute among us, is that a man
should give a loan to a man for a term, and then the
demander reduce it and the one from whom it is demanded
pay it in advance. To us that is like someone who delays
repaying his debt after it is due to his creditor and his
creditor increases his debt." Malik said, "This is nothing
else but usury. No doubt about it."
Malik spoke about a man who loaned one hundred dinars
to a man for two terms. When it was due, the person who
owed the debt said to him, "Sell me some goods, whose
price is one hundred dinars in cash for one hundred and
fifty on credit." Malik said, "This transaction is not
good, and the people of knowledge still forbid it."
Malik said, "This is disapproved of because the
creditor himself gives the debtor the price of what the
man sells him, and he defers repayment of the hundred of
the first transaction for the debtor for the term which is
mentioned to him in the second transaction, and the debtor
increases him with fifty dinars for his deferring him.
That is disapproved of and it is not good. It also
resembles the hadith of Zayd ibn Aslam about the
transactions of the people of the Jahiliyya. When their
debts were due, they said to the person with the debt,
'Either you pay in full or you increase it.' If they paid,
they took it, and if not they increased debtors in their
debts, and extended the term for them."
Yahya related to me from Malik from Abu'z-Zinad from al
Araj from Abu Hurayra that the Messenger of Allah, may
Allah bless him and grant him peace, said, "Delay in
payment by a rich man is injustice, but when one of you is
referred for payment to a wealthy man, let him be
referred."
86 Malik related to me from Musa ibn Maysara that he
heard a man ask Said ibn al-Musayyab, "I am a man who
sells for a debt." Said said, "Do not sell except for what
you take to your camel."
Malik spoke about a person who bought goods from a man
provided that he provide him with those goods by a
specific date, either in time for a market in which he
hoped for their saleability, or to fulfil a need at the
time he stipulated. Then the seller failed him about the
date, and the buyer wanted to return those goods to the
seller. Malik said, "The buyer cannot do that, and the
sale is binding on him. If the seller does bring the goods
before the completion of the term, the buyer cannot be
forced to take them."
Malik spoke about a person who bought food and measured
it. Then some one came to him to buy it and he told him
that he had measured it for himself and taken it in full.
The new buyer wanted to trust him and accept his measure.
Malik said, "Whatever is sold in this way for cash has no
harm in it but whatever is sold in this way on delayed
terms is disapproved of until the new buyer measures it
out for himself. The sale with delayed terms is
disapproved of because it leads to usury and it is feared
that it will be circulated in this way without weight or
measure. If the terms are delayed it is disapproved of and
there is no disagreement about that with us."
Malik said, "One should not buy a debt owed by a man
whether present or absent, without the confirmation of the
one who owes the debt, nor should one buy a debt owed to a
man by a dead person even if one knows what the deceased
man has left. That is because to buy that is an uncertain
transaction and one does not know whether the transaction
will be completed or not completed."
He said, "The explanation of what is disapproved of in
buying a debt owed by someone absent or dead, is that it
is not known what unknown debtor may be connected to the
dead person. If the dead person is liable for another
debt, the price which the buyer gave on strength of the
debt may become worthless."
Malik said, "There is another fault in that as well. He
is buying something which is not guaranteed for him, and
so if the deal is not completed, what he paid becomes
worthless. This is an uncertain transaction and it is not
good."
Malik said, "One distinguishes between a man who is
only selling what he actually has and a man who is being
paid in advance for something which is not yet in his
possession. The man advancing the money brings his gold
which he intends to buy with. The seller says, 'This is 10
dinars. What do you want me to buy for you with it?' It is
as if he sold 10 dinars cash for 15 dinars to be paid
later. Because of this, it is disapproved of. It is
something leading to usury and fraud."
Section: Partnership, Transferral of Responsibility to
an Agent and Revocation
Malik said there was no harm if a man who sold some
drapery and excluded some garments by their markings,
stipulated that he chose the marked ones from that. If he
did not stipulate that he would choose from them when he
made the exclusion, I think that he is partner in the
number of drapery goods which were purchased from him.
That is because two garments can be alike in marking and
be greatly different in price.
Malik said, "The way of doing things among us is that
there is no harm in partnership, transferring
responsibility to an agent, and revocation when dealing
with food and other things, whether or not possession was
taken, when the transaction is with cash, and there is no
profit, loss, or deferment of price in it. If profit or
loss or deferment of price from one of the two enters any
of these transactions, it becomes sale which is made halal
by what makes sale halal, and made haram by what makes
sale haram, and it is not partnership, transferring
responsibility to an agent, or revocation."
Malik spoke about some one who bought drapery goods or
slaves, and the sale was concluded, then a man asked him
to be his partner and he agreed and the new partner paid
the whole price to the seller and then something happened
to the goods which removed them from their possession.
Malik said, "The new partner takes the price from the
original partner and the original partner demands from the
seller the whole price unless the original partner
stipulated on the new partner during the sale and before
the transaction with the seller was completed that the
seller was responsible to him. If the transaction has
ended and the seller has gone, the pre-condition of the
original partner is void, and he has the responsibility."
Malik spoke about a man who asked another man to buy
certain goods to share between them, and he wanted the
other man to pay for him and he would sell the goods for
the other man. Malik said, "That is not good. When he
says, 'Pay for me and I will sell it for you,' it becomes
a loan which he makes to him in order that he sell it for
him and if those goods are destroyed, or pass, the man who
paid the price will demand from his partner what he put in
for him. This is part of the advance which brings in
profit."
Malik said, "If a man buys goods, and they are settled
for him, and then a man says to him, 'Share half of these
goods with me, and I will sell them all for you,' that is
halal, there is no harm in it. The explanation of that is
that this is a new sale and he sells him half of the goods
provided that he sells the whole lot."
Yahya related to me from Malik from Ibn Shihab from Abu
Bakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham that the
Messenger of Allah, may Allah bless him and grant him
peace, said, "Whenever a man sells wares and then the
buyer becomes bankrupt and the seller has not taken any of
the price and he finds some of his property intact with
the buyer, he is more entitled to it than anyone else. If
the buyer dies, then the seller is the same as other
creditors with respect to it."
Malik related to me from Yahya ibn Said from Abu Bakr
ibn Muhammad ibn Amr ibn Hazm from Umar ibn Abdal-Aziz
from Abu Bakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham
from Abu Hurayra that the Messenger of Allah, may Allah
bless him and grant him peace, said, "If anyone goes
bankrupt, and a man finds his own property intact with
him, he is more entitled to it than anyone else."
Malik spoke about a man who sold a man wares, and the
buyer went bankrupt. He said, "The seller takes whatever
of his goods he finds. If the buyer has sold some of them
and distributed them, the seller of the wares is more
entitled to them than the creditors. What the buyer has
distributed does not prevent the seller from taking
whatever of it he finds. It is the seller's right if he
has received any of the price from the buyer and he wants
to return it to take what he finds of his wares, and in
what he does not find, he is like the creditors."
Malik spoke about some one who bought spun wool or a
plot of land, and then did some work on it, like building
a house on the plot of land or weaving the spun wool into
cloth. Then he went bankrupt after he had bought it, and
the original owner of the plot said, "I will take the plot
and whatever structure is on it." Malik said, "That
structure is not his. However, the plot and what is in it
that the buyer has improved is appraised. Then one sees
what the price of the plot is and how much of that value
is the price of the structure. They are partners in that.
The owner of the plot has as much as his portion, and the
creditors have the amount of the portion of the
structure."
Malik said, "The explanation of that is that the value
of it all is fifteen hundred dirhams. The value of the
plot is five hundred dirhams, and the value of the
building is one thousand dirhams. The owner of the plot
has a third, and the creditors have two-thirds."
Malik said, "It is like that with spinning and other
things of the same nature in these circumstances and the
buyer has a debt which he cannot pay. This is the
behaviour in such cases."
Malik said, "As for goods which have been sold and
which the buyer does not improve, but those goods sell
well and have gone up in price, so their owner wants them
and the creditors also want to seize them, then the
creditors choose between giving the owner of the goods the
price for which he sold them and not giving him any loss
and surrendering his goods to him.
"If the price of the goods has gone down, the one who
sold them has a choice. If he likes, he can take his goods
and he has no claim to any of his debtor's property, and
that is his right. If he likes, he can be one of the
creditors and take a portion of his due and not take his
goods. That is up to him."
Malik said about someone who bought a slave-girl or
animal and she gave birth in his possession and the buyer
went bankrupt, "The slave-girl or the animal and the
offspring belong to the seller unless the creditors desire
it. In that case they give him his complete due and they
take it."
Yahya related to me from Malik from Zayd ibn Aslam from
Ata ibn Yasar that Abu Rafi, the mawla of the Messenger of
Allah, may Allah bless him and grant him peace, said, "The
Messenger of Allah, may Allah bless him and grant him
peace, borrowed a young camel and then the camels of
sadaqa came to him." Abu Rafi said, "He ordered me to
repay the man his young camel. I said, 'I can only find a
good camel in its seventh year in the camels.' The
Messenger of Allah, may Allah bless him and grant him
peace, said, 'Give it to him. The best of people are those
who discharge their debts in the best manner.' "
Malik related to me from Humayd ibn Qays al-Makki that
Mujahid said, "Abdullah ibn Umar borrowed some dirhams
from a man, then he discharged his debt with dirhams
better than them. The man said, 'Abu Abdar-Rahman. These
are better than the dirhams which I lent you.' Abdullah
ibn Umar said, 'I know that. But I am happy with myself
about that.' "
Malik said, "There is no harm in a person who has
borrowed gold, silver, food, or animals, taking to the
person who lent it, something better than what he lent,
when that is not a stipulation between them nor a custom.
If that is by a stipulation or promise or custom, then it
is disapproved, and there is no good in it."
He said, "That is because the Messenger of Allah, may
Allah bless him and grant him peace, discharged his debt
with a good camel in its seventh year in place of a young
camel which he borrowed, and Abdullah ibn Umar borrowed
some dirhams, and repaid them with better ones. If that is
from the goodness of the borrower, and it is not by a
stipulation, promise, or custom, it is halal and there is
no harm in it."
Yahya related to me from Malik that he had heard that
Umar ibn al-Khattab said that he disapproved of one man
lending another food on the provision that he gave it back
to him in another city. He said, "Where is the transport?"
And Malik related to me that he had heard that a man
came to Abdullah ibn Umar and said, "Abu Abd ar-Rahman, I
gave a man a loan and stipulated that he give me better
than what I lent him." Abdullah ibn Umar said, "That is
usury." Abdullah said, "Loans are of three types: A free
loan which you lend by which you desire the pleasure of
Allah, and so you have the pleasure of Allah. A free loan
which you lend by which you desire the pleasure of your
companion, so you have the pleasure of your companion, and
a free loan which you lend by which you take what is
impure by what is pure, and that is usury." He said, "What
do you order me to do, Abu Abd ar-Rahman?" He said, "I
think that you should tear up the agreement. If he gives
you the like of what you lent him, accept it. If he gives
you less than what you lent him, take it and you will be
rewarded. If he gives you better than what you lent him,
of his own good will, that is his gratitude to you and you
have the wage of the period you gave him the loan."
Yahya related to me from Malik from Nafi that he heard
Abdullah ibn Umar say, "If someone lends something, let
the only condition be that it is repaid."
Malik related to me that he had heard that Abdullah ibn
Masud used to say, "If someone makes a loan, they should
not stipulate better than it. Even if it is a handful of
grass, it is usury."
Malik said, "The generally agreed on way of doing
things among us is that there is no harm in borrowing any
animals with a set description and itemisation, and one
must return the like of them. This is not done in the case
of female slaves. It is feared about that that it will
lead to making halal what is not halal, so it is not good.
The explanation of what is disapproved of in that, is that
a man borrow a slave-girl and have intercourse with her as
seems proper to him. Then he returns her to her owner.
That is not good and it is not halal. The people of
knowledge still forbid it and do not give an indulgence to
any one in it."
Section: What is Forbidden of Haggling and Transactions
Yahya related to me from Malik from Nafi from Abdullah
ibn Umar that the Messenger of Allah, may Allah bless him
and grant him peace, said, "Do not let any of you bid
against each other."
Malik related to me from Abu'z-Zinad from al-Araj from
Abu Hurayra that the Messenger of Allah, may Allah bless
him and grant him peace, said, "Do not go out to meet the
caravans for trade, do not bid against each other,
outbidding in order to raise the price, and a townsman
must not buy on behalf of a man of the desert, and do not
tie up the udders of camels and sheep so that they appear
to have a lot of milk, for a person who buys them after
that has two recourses open to him after he milks them. If
he is pleased with them, he keeps them and if he is
displeased with them, he can return them along with a sa
of dates."
Malik said, "The explanation of the words of the
Messenger of Allah, may Allah bless him and grant him
peace, according to what we think - and Allah knows best -
'do not bid against each other,' is that it is forbidden
for a man to offer a price over the price of his brother
when the seller has inclined to the bargainer and made
conditions about the weight of the gold and he has
declared himself not liable for faults and such things by
which it is recognised that the seller wants to make a
transaction with the bargainer. This is what he forbade,
and Allah knows best."
Malik said, "There is no harm, however, in more than
one person bidding against each other over goods put up
for sale."
He said, "Were people to leave off haggling when the
first person started haggling, an unreal price might be
taken and the disapproved would enter into the sale of the
goods. This is still the way of doing things among us."
Yahya related to me from Malik from Abdullah ibn Dinar
from Abdullah ibn Umar that a man mentioned to the
Messenger of Allah, may Allah bless him and grant him
peace, that he was always being cheated in business
transactions. The Messenger of Allah, may Allah bless him
and grant him peace, said, "When you enter a transaction,
say, 'No trickery.' So whenever that man entered a
transaction, he would say, 'No trickery.' "
Malik related to me that Yahya ibn Said heard Said ibn
al-Musayyab say, "When you come to a land where they give
full measure and full weight, stay there. When you come to
a land where they shorten the measure and weight, then do
not stay there very long."
Malik related to me from Yahya ibn Said that he heard
Muhammad ibn al-Munkadir say, "Allah loves his slave who
is generous when he sells, and generous when he buys,
generous when he repays, and generous when he is repaid."
Malik said about a man who bought camels or sheep or
dry goods or slaves or any goods without measuring
precisely, "There is no buying without measuring precisely
in anything which can be counted . "
Malik said about a man who gave a man goods to sell for
him and set their price saying, "If you sell them for this
price as I have ordered you to do, you will have a dinar
(or something which he has specified, which they are both
satisfied with), if you do not sell them, you will have
nothing," "There is no harm in that when he names a price
to sell them at and names a known fee. If he sells the
goods, he takes the fee, and if he does not sell them, he
has nothing."
Malik said, "This is like saying to another man, 'If
you capture my runaway slave or bring my stray camel, you
will have such-and-such.' This is from the category of
reward, and not from the category of giving a wage. Had it
been from the category of giving a wage, it would not be
good."
Malik said, "As for a man who is given goods and told
that if he sells them he will have a named percentage for
every dinar, that is not good because whenever he is a
dinar less than the price of the goods, he decreases the
due which was named for him. This is an uncertain
transaction. He does not know how much he will be given."
Malik related to me that he asked Ibn Shihab about a
man who hired an animal, and then re-hired it out for more
than what he hired it for. He said, "There is no harm in
that."