In the name of Allah, most beneficent, most merciful.
Peace and blessings of Allah (swt[1])
be upon the last and the final messenger Mohammed (saw[2]).
Peace, mercy and blessings of Allah (swt) be upon you.
By the grace of Allah (swt), I got the opportunity to attend
four lectures of Sheikh Ustad Sajid Umar on the topic “Introduction to Sharia’a[3]
Transactions” organized by the Kalimah
Islamic Center.
Before I share with you the experience and knowledge
gained from the four sessions, let me please make it clear that:
1.
Whatever good is from Allah
and whatever evil that occurs is from my soul and shaitan. (more info)
2.
Whatever I am sharing here
is what “I” understood from the session and if there is any ambiguity/mistake
it should be attributed to me.
3.
If you come across anything
that is not in line with the Sharia’a, please let me know and I shall correct
myself.
Although, the lecture series was titled “Introduction to
Sharia’a Transactions”, it actually was an introduction to “Introduction to
Sharia’a Transactions” as clarified by the Sheikh on the very first day.
The lecture series was based on a part/section of the
book titled “The Book of Transactions (Sales/Trade)” (كتاب البيع).
The Conditions for Transactions (Sales/Trade)
The linguistic meaning of البيع
is taking and giving something. باع
in
Arabic means Hand.
The concept of Sharia’a is to increase benefits and remove harm both
at the individual level and at the community level. The Sharia’a is so
comprehensive that it looks at both the individual and at the community level.
The concept of Sharia'a in terms of Finance is to provide
(financial) independence and justice.
Independence in Sharia'a is not only about
physical/eternal/financial independence but also in terms of spirituality/soul/internal. (The
soul should be independent of any worldly attachment; it should seek and attain
an attachment with Allah (swt).)
Sharia'a wants us to earn Halaal[4],
get independent of this world and get closer to Allah (swt).
Justice is about not going to any of the extremes
but taking a middle approach/way.
There are three important points with respect to the transactions (معاملات). They are:
1.
From the outset everything
is permissible, if it is something, which is not a direct worship (عبادة). For example, using
a car for transportation, using a fork/spoon to eat food, etc. Someone has to
produce a proof if they say something is not permissible. On the contrary,
everything is impermissible with respect to anything that is of a direct
worship. For example, we cannot pray five rakaah[5]
(ركعت) for Dhuhar[6]
(ظهر) instead of four. Someone
has to produce a proof if they say something is allowed as a direct worship.
2.
Understanding the
principles (ضوابط) of trade.
3.
Understanding the product
itself. Having sound knowledge of the product which is being traded.
Definition of transaction (البيع) as defined by this book is:
Exchange of an asset (المال) for an asset or rights on a perpetual basis and it should
not include usury (الربا) and it should not be
lending.
Exchange could be done:
1.
Verbally (someone pitches in
the offer and the other party says I accept. Typical example is of the
marriage)
2.
Silently (someone comes into
the shop, read the price tag, put the money on the counter and goes off. Things
that we buy at a vending machine. Online shopping is another example.)
3.
[Even if][7]
the product
being traded is not physically present at that place. But,
one has to describe the item/product/asset in a manner as descriptive as
possible. All aspects that effect the price should be clearly defined.
المال (maal) in Arabic means to lean towards. Asset here
refers to anything that is of value. For example, gold, pen, camel, etc. but it
doesn’t include anything that is haraam[8].
Rights include every intangible thing and things
that you do not own but have right to use them. Such as using the road,
software etc.
If the exchange of an asset is not done on a perpetual basis
then it is lending/borrowing. And, this type of transaction falls under
another category in Sharia'a.
From here on, the points from the books are mentioned.
311- The general ruling for ‘transactions’ is that of
‘permissibility’. Allah (swt) says: “Allah has permitted trade and forbidden
usury.” [Al Quran 2:275]
312- Thus all tangibles, such as, property[9],
animals, furniture etc. are permissible to place under (contractual obligation)
if the conditions for trade are met.
For animals who feeds on public posture, the zakaat[10]
on them is obligatory. For those who don’t, paying zakaat on them is not
obligated. But if these animals are meant for trading, then zakaat is
obligatory (even if the animals do not feed on public posture).
The presence of any of the following makes a contract
null and void.
1.
Riba’a[11]
(الربا) (usury)
2.
Gharar (الغرر) (deception)
3.
Jahala (جهالة) (uncertainty)
4.
Zero sum
money/gambling/where one party wins at the expense of other
5.
Anything that causes wajib[12](واجب) to be left out or
that makes us practice haram
6.
Oppression
7.
Or anything that leads to
any of the above six points
313- From the most important of conditions are:
First Condition: Mutual Consent
Because Allah (swt) says: “O you who believe! Eat not up your property among yourselves unjustly
except if it be a trade amongst you by mutual consent.” [Al Quran 4:29]
Mutual consent prevents enmity and oppression. It is
reported in one of the Hadith[13]
that the wealth of one Muslim is haram for another except it is by mutual
consent. Mutual consent also incorporates that the one (seller or buyer) should
not be forced to get into a transaction. It should be done on free will.
There might be some exceptions to this rule, for example,
in a Sharia'a court, if a judge orders that the wealth accumulated by a person
should be sold so that he can repay his debt. In this case, if the person
agrees or not, the wealth has to be disposed so that the debt can be repaid.
Another example for an exception could be when the
Sharia'a court orders a person to sell his stocks/food items because he was
retaining them with an intention that when the demand goes up he can sell them
at increased price.
It is worth noting that the Sharia'a looks at:
·
Society’s benefit over an
individual
·
Benefits outweighing the
harm
Second Condition: Absence of gharar and jahala
315- That there is neither gharar (deception) nor jahala (uncertainty);
because our prophet (saw) said “forbade the sale of gharar”.
Gharar is described as risky/deceptive, where
details concerning the sale item are unknown or uncertain. Islam doesn’t want to
cause any injustice or deceit against any of the parties.
The linguistic meaning of jahala is ignorance.
Lack of
clarity for either of the parties with regard to the terms and
conditions, product, etc. Eventually, jahala may lead to gharar.
Based upon this (the second condition) the following
transactions (sales) are forbidden.
·
The selling of a slave who
has already escaped and a camel which already runaway.
This transaction carries gharar.
The seller doesn’t know if he is going to find/catch the slave/camel.
·
A sale in which one says,
‘I will sell to you one of the following two items’
This transaction carries jahala if
“following
two items” are not the same. The buyer doesn’t know for sure as to what
he is getting. (Is he getting a Toyota or a Mercedes? Is he getting a bag of
rice or a bag of wheat?)
·
A sale that entails selling
of an area of land determined by a stone’s throw, etc.
·
[For a master] to sell the
unborn child of his female slave, or to sell the fruit of a tree before its
condition is known.
This transaction carries both gharar and jahala. First
of all the buyer doesn’t know if the child/fruit will born/reap or not. And if
it is born/reap, what will its condition be?
·
To sell the unborn
offspring of an animal.
If the deal is for the cow and
if the calf is a byproduct of the transaction then there is nothing wrong. The
deal should be on the mother as it doesn’t involve any gharar (deception)
or jahala (uncertainty).
This condition of
there being neither gharar (deception) nor jahala (uncertainty) in the sale applies to both the price of the commodity as well as the
commodity itself.
If someone is selling a watch the conditions of gharar
and jahala shall apply to both the watch and its price.
Third Condition: Either own or have permission to sell the product
316- For the seller to actually own the object being
sold, or have permission to sell it, whilst having attained maturity as well as
competency.
Few points to note with respect to the parties engaging
in transactions:
1.
They should be free
2.
Attain age of puberty
(either one of these condition applies to classify someone as they have
attained the age of puberty. Which are age>=15 years, having wet dream, pubic
hair growth, or having menses)
3.
Have sound mind
4.
Ability to handle money
maturely and wisely
Fourth Condition: Free from riba’a
317- From the conditions that apply as well is for the
transaction to be free from any elements of riba’a.
On the authority of ‘Ubaadah (ra)[14]
the prophet (saw) said “Gold for gold, silver for silver, wheat for wheat,
barley for barley, dates for dates, and salt for salt, (must be of) same quantity
for same quality, (with the exchange being) hand to hand. However if these
classes differ; seek s you please, as long as (the exchange is) hand to hand.”
[Muslim]
Fifth Condition: Forbidden object
324- From the Sharia'a conditions of the sale is that the
sale does not apply to a forbidden object by the Sharia'a.
·
Either due to the essence
of the item itself, (for example) how the Prophet (saw) “forbade the selling of
intoxicants, carrion and idols”. (Agreed upon)
·
Or due to the sale
resulting in the severing of ties between Muslims. Thus, the Prophet (saw)
forbade “buying and selling in opposition to one’s brother and likewise an-najash[15]”.
(Agreed upon)
·
Likewise the Prophet (saw)
forbade the separating of slaves that are members of one family.
·
Likewise a transaction
where it is known that the buyer will perform a sin with the item purchased
like (the purchase of) walnuts and eggs for gambling, or weapons to create fitnah
(strife) or for travel robbers.
·
The Prophet (saw) also
forbade going to meet those bringing merchandise into the market for sale before
reaching the market. Thus, he (saw) said “Do not intercept incoming merchants;
if a person intercepts (an incoming merchant) and buys from him, the merchant
has the choice of taking it back when he reaches the market”. [Muslim]
·
The Prophet (saw) also said
“Whoever cheats us is not from us.” [Muslim]
Note: Based on the above conditions the insurance and network marketing, pyramid marketing, chain
marketing are classified as Haraam in Islam.
May Allah (swt) guide us and make us among those who are righteous and God fearing. Ameen!
Note: Based on the above conditions the insurance and network marketing, pyramid marketing, chain
marketing are classified as Haraam in Islam.
May Allah (swt) guide us and make us among those who are righteous and God fearing. Ameen!
[1]
Subhanahu Wataala (Glorified and Exalted be He)
[2]
Sallallahu Alayhi Wasallam (peace be upon him)
[3]
A set of rules, regulations, teachings, and values governing the lives of
Muslims
[4]
Permitted or lawful
[5]
Repetition
[6]
The mid-day prayer performed by Muslims
[7]
[Even if] signifies that there is difference of opinion
[8]
Forbidden in Islam
[9]
Real estate, house, land, etc.
[10]
Literally means purification and growth. It is the third pillar of Islam.
[11]
Effortless profit or that profit which comes free from compensation
[12]
Necessary worship
[13]
Sayings of Prophet (saw)
[14]
Radi Allahu ‘anhu: May Allah be pleased with him
[15]
This is where a person makes a bid merely to raise the price of an item not
intending to buy it.
