Lawful Transactions

Similars of weight and capacity have a common feature of commodities, and marks with further peculiarity their treatment in the Islamic Law. There are aggregates of minute parts, which are either exactly alike or so nearly resemble each other, that the difference between them may be safely disregarded. For this reason they are usually dealt with in bulk, regard being had only to the whole of a stipulated quantity, and not to the individual parts of which it is composed. When sold in this manner, they are said to be indeterminate. They may, however, be rendered specific in several ways. Actual delivery, or production with distinct reference at the time of contract, is sufficient for that purpose in all cases. But something short of this would suffice for all similars, excepting money. Thus flour, or any kind of grain, may be rendered specific by being enclosed in a sack, or oil, or any liquid, by being put into casks or jars; and though the vessels are not actually produced at the time of contract, their contents may be sufficiently particularized by description of the vessels and their locality. Money is not susceptible of being thus particularized. Hence, money is said to be always indeterminate. Other similars, including similars of tale [number], are sometimes specific and sometimes indeterminate. non-similars, including those of tale, are always specific.

When similars are sold indeterminately, the purchaser has no right to any specific portion of them until it be separated from a general mass, and marked and identified as the subject of the contract. From the moment of offer till actual delivery, he has nothing to rely upon but the seller’s obligation, which may, therefore, be considered the direct subject of the contract. Similars taken indeterminately are accordingly termed dayn or obligation in the Islamic Law. When taken specifically, they are classed with non-similars under the general term of ‘ayn. The literal meaning of this term is “substance or thing”; but when opposed to dayn it means something determinate or specific. The subject or traffic may thus be divided into two classes: specific and indeterminate; or if we substitute for the latter the word “obligation” and omit the word “specific” as unnecessary when not opposed to “indeterminate,” these classes may according to the view of Islamic lawyers, be described as thing and obligation.

It is a general principle of the Islamic Law of sale that credit cannot be opposed to credit, namely that both the things exchanged cannot be allowed to remain on the responsibility of the parties. Hence it is only with regard to one of them that any stipulation for delay in delivery is lawful. Price admits of being left on responsibility, and accordingly a stipulation for delay in the payment of the price is quite lawful and valid. It follows that a stipulation for delay in the delivery of the things sold cannot be lawful. And this is the case, with the exception of a particular kind of sale, hereafter to be noticed, in which the things to be sold is always indeterminate, and the price is made in advance. It may, therefore, be said of all specific things when it is a subject of sale, that a stipulation for delay in their delivery is illegal, and would invalidate a sale. The object of this rule may have been to prevent any change of the thing sold before delivery, and the disputes which may in consequence arise between the parties.

There is kind of sale known as salam in the Islamic Law. This word literally means an “advance”; and in a salam sale the price is immediately advanced for the goods to be delivered at a future fixed time. It is only things of the class of similars that can be sold in this way, and as they most necessarily be indeterminate, the proper subject of sale is an obligation, while, on the other hand, as the price must be actually paid or delivered at the time of the contract, before the separation of the parties, and must, therefore, even in the case of its being money, be produced, and in consequence be particularized or specified; a salam sale is strictly and properly the sale of an obligation for a thing, as defined before. Until actual payment or delivery of the price, however, it retains its character of an obligation, and for this reason the price and the goods are both termed “debts,” and are adduced as examples of the principles that the sale of a debt, i.e. of the money or goods which a person is under engagement to pay or deliver before possession, is invalid.

There is another transaction which comes within the definition of sale; it is that which is called qard in Arabic and “loan” in English. The borrower acquires an absolute right of property in the things lent; and comes under an engagement to return an equal quantity of things of the same kind. The transaction is, therefore, necessarily limited to similars, whether of weight, capacity, or tale, and the things lent and repaid being of the same kind, the two rules mentioned for the prevention of riba or usury must be strictly observed. Hence it follows that any stipulation on the part of the borrower for delay or forbearance by the lender, or any stipulation by the latter for interest to be paid by the former are alike unlawful.

Notwithstanding the stringency of the rules for preventing usury, or the taking of any interest on the loan of money, methods were found for evading them, while still keeping within the letter of the law. It had always been considered lawful to take a pledge to secure the repayment of a debt. Pledges were ordinarily of movable property; when given as security for a debt, and the pledge happened to perish in the hands of the pawnee, the debt was held to be released to the extent of the value of the pledge. Land, though scarcely liable to this incident, was sometimes made the subject of pledge, and devices were adopted for enabling the lender to devices were adopted for enabling the lender to derive some advantage from its possessions while in the state of pledge. If repayments were made at the assigned term, the lender was obliged to recovery; but if not, the property would remain his own, and the difference between its value and the price of sum lent might have been made a sufficient compensation for the loss of interest. This form of sale which is called bay-ulwafa’i, in Arabic is a term given to a sale of something that may be reconveyed by the seller on repayment at a fixed period of the price or sum given. This form of sale seems to be strictly legal according to the most approved authorities, though held to be what the law calls abominable, as a device for obtaining what it prohibits.

In constituting sale, there is no material difference between the Islamic and other system of law. The offer and acceptance which is expressed or implied in all cases, must be so connected as to obviate any doubt in one being intended to apply to the other. For this purpose, the Islamic Law requires that both shall be interchanged at the same meeting of the parties, and that no other business shall be suffered to intervene between an offer and its acceptance. A very slight interruption is sufficient to break the continuity of a negotiation, and to terminate the meeting in a technical sense, though the parties should still remain in personal communication. An acceptance after the interruption of an offer made before it would be insufficient to constitute a sale. As personal communication may be inconvenient in some cases, and impossible in other, the integrity of the meeting is held to be sufficiently preserved when a party who receives an offer by message or letter declares his acceptance of it on receiving the communication and apprehending its contents. When a sale is lawfully contracted, the property of the things exchanged passes immediately from and to the parties respectively.

In a legal sense, delivery and possession are not necessary for this purpose. Until possession is taken, however, the purchaser is not liable for accidental loss, and the seller has a lien for the price on the thing sold. Delivery by one party is in general tantamount to possession taken by the other. It is, therefore, sometimes of great importance to ascertain when there is a sufficient delivery; and many cases real or imaginary, on the subject, are inserted in the books of detailed theology [1]. It sometimes happens that a person purchases a thing of which he is already in possession, and it then becomes important to determine in what cases his previous possession is convertible into a possession under the purchase. Unless so converted, it would be held that there is no delivery under the sale, and the seller would of course retain his lien and remain liable for accidental loss.

Though possession is not necessary to complete the transfer of property under a legal sale, the case is different where the contract is illegal; for here property does not pass till possession is taken. The sale, however, though so far effectual, is still invalid, and liable to be set aside by a judge, at the instance to the fact of the person complaining being able to come before him with what in legal phraseology is termed “clean hands.” A Muslim judge is obliged by his law to interfere for the sake of the law itself, or, as it is more solemnly termed, for the right of God, which is the duty of the judge to vindicate, though by so doing he may afford assistance to a party who personally may have no just claim to his interference.