د طارق جابر فقه المعاملات المالية 2 المحاضرة 3

Summary

The lecture explains prohibited sales, the distinction between invalid and valid-but-forbidden transactions, the principle of separating a mixed transaction, and the buyer’s right to rescind a sale because of a defect. The discussion follows the Shafi‘i school and uses ʿUmdat al-Sālik as its main text.

1. Prohibited sales that invalidate the contract

The lecturer distinguishes these from sales that are forbidden for an external reason but remain legally valid. In this category, the problem concerns an essential element or condition of the contract—such as the identity of the item, the price, or the required offer and acceptance—so the contract is invalid. A person who knowingly and deliberately enters such a transaction is also sinful.

Examples discussed include:

• Selling the offspring of an animal’s offspring, or linking the sale or payment to an uncertain future event. The item or payment date is not sufficiently known, creating uncertainty.
• Sale by touch: Treating a buyer’s touch of a concealed or folded item as the sale, without proper inspection or a valid opportunity to rescind.
• Sale by pebbles: Either selling whichever item a thrown pebble lands on, leaving the item uncertain, or using the throw itself in place of the required contract formula.
• Two sales in one sale: For example, offering one price for immediate payment and another for deferred payment in the final contract without specifying which price applies. The price is therefore unknown. A condition that one party make a separate sale or loan as part of the bargain can also invalidate the transaction.
• Invalid contractual conditions: Some conditions undermine the contract, such as requiring the buyer to resell the item to the seller or restricting the buyer from exercising ordinary rights of ownership.

The lecturer groups contractual conditions broadly:

1. Conditions inherent in the contract: Such as payment of the agreed price; these are valid.
2. Permissible, beneficial conditions: Such as a specified deferment, collateral, or a guarantor, provided the terms are clear and agreed.
3. Conditions that obstruct a contractual right or impose an undue obligation: These may invalidate the contract.
4. Conditions unrelated to the contract’s purpose: These may be void while the sale itself remains valid, unless they create significant uncertainty or likely dispute.

Other cases addressed include:

• Earnest-money sales: The lecturer describes a deposit that the seller keeps if the buyer later withdraws as invalid under the view presented.
• Separating a mother animal from a young child: This is invalid before the child is considered discerning. The lecture describes discernment in terms of the child’s practical independence rather than a fixed age.
• Disclaiming defects: Under the relied-upon view described, a seller’s disclaimer applies only to a hidden, pre-existing defect in an animal that the seller did not know about. The lecturer notes that broader views are also discussed.

2. Forbidden sales that do not invalidate the contract

In this category, the prohibition relates to an external harm or circumstance rather than an essential element of the sale. The transaction remains valid, but a person who knowingly and deliberately engages in the prohibited conduct is sinful.

The lecture discusses these examples:

• A town resident selling on behalf of a Bedouin seller: The concern is that the resident may hold back commonly needed goods and sell them gradually at higher prices, when the seller intended to sell at the prevailing market price.
• Intercepting incoming caravans: Approaching sellers before they reach the market and exploiting their lack of market information to buy their goods below the prevailing value.
• Bidding against someone whose sale is already settled: Attempting to disrupt a concluded bargain by offering the buyer a better deal or persuading the seller to accept more.
• Selling over another person’s sale: Encouraging one party to cancel an existing agreement so that the interloper can offer a different or better transaction.
• Najsh (deceptive bidding): Raising a price without intending to buy, in order to mislead or harm a genuine buyer. This is distinguished from ordinary bidding by people who genuinely intend to purchase.
• Selling grapes to someone known to intend making wine: The sale remains valid in the lecture’s account, though it is forbidden when that use is certain and disliked when it is only suspected.

3. Separating a mixed transaction

The lecturer explains that a contract may combine items or agreements with different legal rulings. He outlines three situations:

1. Permissible and impermissible items combined from the outset: For example, vinegar sold together with wine, or the seller’s own property sold together with property belonging to someone else without authority. The relied-upon approach is to separate the transaction: uphold the sale for the permissible portion and invalidate it for the impermissible portion. The price is apportioned accordingly. If the buyer was unaware of the problem, the buyer has an option to avoid being forced into only part of the bargain.
2. One of two contracted items is destroyed before delivery: The discussion applies the same general idea of separating the transaction and accounting for the surviving item’s share of the price, while preserving the buyer’s option where division would cause harm.
3. Different types of contracts combined: Examples include a sale combined with a lease, or a sale combined with marriage. The lecturer says the compensation is allocated between the parts according to their respective values or legal assessments.

4. The buyer’s option to rescind for a defect

A seller who knows of a defect must disclose it if the defect gives the buyer a right to rescind. Concealing such a defect is deception and sinful, but it does not by itself invalidate the sale. The buyer can either accept the item or return it and recover the price.

The lecture presents three general bases for a defect-related right:

• A condition expressly agreed by the parties.
• An expectation arising from custom about the item being sound or having particular qualities.
• Actual deception or concealment by the seller.

For a defect to generally justify rescission:

• It must have existed before the buyer took possession, whether it arose before the contract, during it, or after it but before possession. A defect arising after possession generally does not qualify, except where it results from an earlier cause.
• It must reduce the item or its value in a way that defeats a legitimate purpose of the purchase. Whether a feature counts as a defect depends in part on customary expectations.
• Minor features that do not reduce value or defeat a legitimate purpose do not necessarily create a right to rescind.

The lecturer also covers these situations:

• The item is destroyed before the defect is discovered: Since return is impossible, the buyer may be entitled to the difference between the item’s sound value and its defective value.
• The buyer has transferred ownership to someone else: The lecture generally treats this as preventing the usual return or compensation claim. It notes a qualification if the item later returns to the buyer, depending on how that return occurred.
• A new defect appears while the item already has an old defect: This generally prevents the buyer from compelling the seller to take the item back. The parties may resolve the matter by agreement. An exception is described for items—such as a watermelon or eggs—whose hidden defect cannot be discovered without breaking or opening them.
• Acting promptly: Once the buyer discovers a qualifying defect, the buyer must seek rescission without unreasonable delay. A genuine impediment, such as finishing prayer, eating, attending to bodily needs, or being unable to act at night, may excuse delay. The buyer should not continue using the item in a way that indicates acceptance.

5. Misrepresenting an animal’s condition and disclosure in trust-based sales

The lecture describes tadriyah—withholding an animal’s milk to make it appear more productive—as a form of deception. The buyer may return the animal. If the buyer has milked it, the lecture states that the buyer returns a prescribed measure of dates in place of the milk, following the rule cited in the relevant hadith.

The same underlying duty to disclose applies to other deliberate misrepresentations. In sales based on the seller’s stated original cost—such as cost-plus, partnership, or loss-based sales—the seller must disclose relevant defects and matters affecting that cost, including deferred payment terms.

Speakers and sources mentioned

• Speaker: Dr. Tariq Jaber, as identified by the video title; he is the lecturer throughout.
• Primary text: ʿUmdat al-Sālik by Ibn al-Naqīb al-Miṣrī.
• Other scholars mentioned: Imam al-Nawawi and Shaykh al-Islam.
• Religious sources cited: Qur’anic passages concerning deferred debts and pledges; hadith reports attributed to the Prophet Muhammad and associated in the lecture with Abu Hurairah, Ibn Abbas, and Abdullah ibn Umar. The lecture also refers to reports in Sahih Muslim and the two Sahih collections.