Continuing the discussion on conditions in sales; the scenario is that the principal says to the agent: If you sell the goods for a higher price, the profit is yours.
Machine translationRead the Arabic original
The Shaykh : The first scenario you presented... I think the issue involves an element of kindness.
The questioner: Yes.
The Shaykh : Yes, whereas if I say: I am selling you this item on the condition that if I sell it to someone else for a higher price, the profit is mine, and if for a lower price, the loss is yours, this is a condition that is considered invalid.
The questioner : Yes, it did not turn out that way, but this person...
The Shaykh : He started speaking after you, so I told him: Wait for Abu Ahmad to come... I placed that condition.
The questioner : Yes, indeed... the condition comes back to be discussed again.
The Shaykh : I am telling you, it is valid from a jurisprudential standpoint, but it may not be valid as a practical solution; for example, a person, as you described, said to him: I am selling this to you for half the price because you are my brother or my friend, or so on, but if you do not fulfill your obligation with me... and do not sit... and go sell it to a stranger, then the profit is mine. Yes, this is different from the scenario where we suppose another person sold and said to him: If you sell it, the profit is mine, and if you sell it and incur a loss, the loss is yours; so this has an answer, and this has an answer.
The questioner : It turned out in this manner, but I said that condition is valid; because this is now...
Another questioner : It is known that he will not incur a loss.
The questioner : He is saying: I truly accepted this condition, and I have now made a profit.
...
The Shaykh : The issue of conditions in a contract; not every condition in a contract is invalid, as we hinted at, but the condition that returns to the subject of the contract, the item being sold, to invalidate it, is invalid. On this basis came the hadith of Barirah; because they were imposing a condition contrary to the Shari'ah,Sahih al-Bukhari 6752; and therefore their condition was invalid, even if it were a hundred conditions. But when a Muslim imposes a condition in a sale that does not contradict the essence of the sale, here another hadith comes to us, which is the hadith of Jabir; when he sold a camel to the Messenger (peace and blessings be upon him), with its back facing Medina; this is a condition, and the practical condition returns to prohibiting the buyer from benefiting from what he bought for a certain period = -- and upon you be peace -- = so we find that the Messenger (peace and blessings be upon him) approved Jabir regarding this condition.
This same condition, if we depicted it in another form, would reveal its invalidity; if he said to you: I am selling it to you on the condition that its back is for me; this condition is invalid. But on the condition that its back is for me until Medina, it is a permissible condition. The first condition is invalid because what did this buyer gain from the purchase? He gained nothing, so this negates the purpose of the item being sold. In our previous story, this condition does not negate the item being sold; this condition is permissible in my belief; especially since the one who sold did not intend trade; on the contrary, he intended kindness to his brother and his neighbor, so I believe that this condition is effective and valid and not invalid.
The questioner: And upon you peace.
The Shaykh : Here are some questions. Is it Ahmad?
The questioner : ... .
Another questioner : ... .
The Shaykh : Some of the questions are not clear; perhaps you understand them...
The questioner : ... he married off his son and paid the bridal gift; so whether...
The Shaykh : We did not tell you: Read it to me, understand...
The questioner: Go ahead.
The Shaykh : I am consulting with you about what he intends, why am I asking the question? What is confusing me?
The questioner : I am...
The Shaykh : Are you the one who asked the question? There is no objection to you...
Another questioner: Peace be upon you.
Another questioner: And upon you peace.
The Shaykh : We will start with the answer, and then if the question is confusing to us, we will clarify it with you.
The questioner: Yes.
The Shaykh : Yes, whereas if I say: I am selling you this item on the condition that if I sell it to someone else for a higher price, the profit is mine, and if for a lower price, the loss is yours, this is a condition that is considered invalid.
The questioner : Yes, it did not turn out that way, but this person...
The Shaykh : He started speaking after you, so I told him: Wait for Abu Ahmad to come... I placed that condition.
The questioner : Yes, indeed... the condition comes back to be discussed again.
The Shaykh : I am telling you, it is valid from a jurisprudential standpoint, but it may not be valid as a practical solution; for example, a person, as you described, said to him: I am selling this to you for half the price because you are my brother or my friend, or so on, but if you do not fulfill your obligation with me... and do not sit... and go sell it to a stranger, then the profit is mine. Yes, this is different from the scenario where we suppose another person sold and said to him: If you sell it, the profit is mine, and if you sell it and incur a loss, the loss is yours; so this has an answer, and this has an answer.
The questioner : It turned out in this manner, but I said that condition is valid; because this is now...
Another questioner : It is known that he will not incur a loss.
The questioner : He is saying: I truly accepted this condition, and I have now made a profit.
...
The Shaykh : The issue of conditions in a contract; not every condition in a contract is invalid, as we hinted at, but the condition that returns to the subject of the contract, the item being sold, to invalidate it, is invalid. On this basis came the hadith of Barirah; because they were imposing a condition contrary to the Shari'ah,
The Wala' is for the manumitted (of the slave).
إنما الولاء لِمَن أعتَقَThis same condition, if we depicted it in another form, would reveal its invalidity; if he said to you: I am selling it to you on the condition that its back is for me; this condition is invalid. But on the condition that its back is for me until Medina, it is a permissible condition. The first condition is invalid because what did this buyer gain from the purchase? He gained nothing, so this negates the purpose of the item being sold. In our previous story, this condition does not negate the item being sold; this condition is permissible in my belief; especially since the one who sold did not intend trade; on the contrary, he intended kindness to his brother and his neighbor, so I believe that this condition is effective and valid and not invalid.
The questioner: And upon you peace.
The Shaykh : Here are some questions. Is it Ahmad?
The questioner : ... .
Another questioner : ... .
The Shaykh : Some of the questions are not clear; perhaps you understand them...
The questioner : ... he married off his son and paid the bridal gift; so whether...
The Shaykh : We did not tell you: Read it to me, understand...
The questioner: Go ahead.
The Shaykh : I am consulting with you about what he intends, why am I asking the question? What is confusing me?
The questioner : I am...
The Shaykh : Are you the one who asked the question? There is no objection to you...
Another questioner: Peace be upon you.
Another questioner: And upon you peace.
The Shaykh : We will start with the answer, and then if the question is confusing to us, we will clarify it with you.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.