Benefits of the Hadith: (That the Messenger of Allah (peace and blessings be upon him) prohibited the sale of the foetus of the foetus . . . ).
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The Shaykh : It is derived from the hadith of 'Abdullah ibn 'Umar (may Allah be pleased with them both) the prohibition of selling a foetus, and the wisdom behind this is that it is unknown; it is not known whether it will be male or female, one or multiple, alive or dead. It also prohibits selling the foetus of the foetus of the foetus, which is also non-existent and unknown, non-existent and unknown, and this is more severe than selling the foetus itself. Is the sale of a pregnant woman with her foetus analogous to this?
The student: No.
The Shaykh : The answer is no, because the foetus in that case is a dependent, the foetus in that case is a dependent. So if it is a dependent, then what does not hold in its own right does not hold as a dependent. Its analogy is if one sold the milk in the udder, it would not be valid, but if one sold a sheep that has milk in it, it would be valid. Good.
Among the benefits of the hadith is also the prohibition of everything that contains ignorance, of everything in which there is ignorance, whether it is in the item being sold, or in the price of the item being sold, or in the term, by analogy to the foetus of the foetus.
And among the benefits of the hadith is the clarification of what the people of the pre-Islamic age of ignorance were doing in terms of defective transactions, due to his saying: "And it was a sale that the people of the pre-Islamic age of ignorance used to buy".
And among the benefits of the hadith is that if a transaction existed in the pre-Islamic age of ignorance and the Shari'ah did not disapprove of it, then it is permissible, because the silence of the Shari'ah regarding it without disapproval indicates its approval. Among this, according to the opinion of many scholars, is the profit-sharing partnership, for there is no explicit text in Islam regarding the profit-sharing partnership, but it was known in the pre-Islamic age of ignorance, so Islam approved it and did not prohibit it. The profit-sharing partnership is that you give a person money to trade with, and whatever profit is obtained is between you two according to what you stipulate, and it is permissible.
And among the benefits of the hadith is that it is stipulated that the price be known, and the item being sold be known, and if the price is deferred, that the term be?
The student: Known.
The Shaykh : As for the first and second, which is the stipulation of knowing the item being sold and knowing the price, this is clear. But as for the stipulation of knowing the term, the scholars have mentioned that it is not a condition for validity, so the sale is valid, but the stipulation is not valid, the stipulation is not valid, so the price becomes due immediately, meaning that if he defers the price to an unknown term, such as saying, "I sold you this thing for one hundred riyals," and he says, "I bought it until Zayd arrives," the term here?
The student: Unknown.
The Shaykh : Unknown, we do not know when he will arrive. The scholars say the stipulation is defective and the sale is valid, and that is because the sale no longer contains a prohibition that returns to its essence or to its stipulation, but rather the excessive uncertainty is in the ignorance, in the ignorance of the deferral. And at that time we say if the stipulation is defective, meaning the stipulation of deferral, the sale remains due immediately, because the deferral is defective. If it becomes due immediately and the seller says to the buyer, "Come, give me the price," and he says, "Was not the price deferred until Zayd arrives?" He says, "Yes, but this term is unknown, so it is invalid." We say to the buyer at that time he has the option, the buyer has the option, because what did he buy on? On the fact that the price is deferred. So if it becomes clear that the term is defective, it is said to him, "You have the option; if you wish, take it now in cash, yes, pay the price in cash, and if you wish, cancel the sale." If he says, "I want to proceed with the sale and make the term known, so I say I bought it for such-and-such for a period of one year," we say this is a new contract if the seller is pleased with that, otherwise not.
The student: No.
The Shaykh : The answer is no, because the foetus in that case is a dependent, the foetus in that case is a dependent. So if it is a dependent, then what does not hold in its own right does not hold as a dependent. Its analogy is if one sold the milk in the udder, it would not be valid, but if one sold a sheep that has milk in it, it would be valid. Good.
Among the benefits of the hadith is also the prohibition of everything that contains ignorance, of everything in which there is ignorance, whether it is in the item being sold, or in the price of the item being sold, or in the term, by analogy to the foetus of the foetus.
And among the benefits of the hadith is the clarification of what the people of the pre-Islamic age of ignorance were doing in terms of defective transactions, due to his saying: "And it was a sale that the people of the pre-Islamic age of ignorance used to buy".
And among the benefits of the hadith is that if a transaction existed in the pre-Islamic age of ignorance and the Shari'ah did not disapprove of it, then it is permissible, because the silence of the Shari'ah regarding it without disapproval indicates its approval. Among this, according to the opinion of many scholars, is the profit-sharing partnership, for there is no explicit text in Islam regarding the profit-sharing partnership, but it was known in the pre-Islamic age of ignorance, so Islam approved it and did not prohibit it. The profit-sharing partnership is that you give a person money to trade with, and whatever profit is obtained is between you two according to what you stipulate, and it is permissible.
And among the benefits of the hadith is that it is stipulated that the price be known, and the item being sold be known, and if the price is deferred, that the term be?
The student: Known.
The Shaykh : As for the first and second, which is the stipulation of knowing the item being sold and knowing the price, this is clear. But as for the stipulation of knowing the term, the scholars have mentioned that it is not a condition for validity, so the sale is valid, but the stipulation is not valid, the stipulation is not valid, so the price becomes due immediately, meaning that if he defers the price to an unknown term, such as saying, "I sold you this thing for one hundred riyals," and he says, "I bought it until Zayd arrives," the term here?
The student: Unknown.
The Shaykh : Unknown, we do not know when he will arrive. The scholars say the stipulation is defective and the sale is valid, and that is because the sale no longer contains a prohibition that returns to its essence or to its stipulation, but rather the excessive uncertainty is in the ignorance, in the ignorance of the deferral. And at that time we say if the stipulation is defective, meaning the stipulation of deferral, the sale remains due immediately, because the deferral is defective. If it becomes due immediately and the seller says to the buyer, "Come, give me the price," and he says, "Was not the price deferred until Zayd arrives?" He says, "Yes, but this term is unknown, so it is invalid." We say to the buyer at that time he has the option, the buyer has the option, because what did he buy on? On the fact that the price is deferred. So if it becomes clear that the term is defective, it is said to him, "You have the option; if you wish, take it now in cash, yes, pay the price in cash, and if you wish, cancel the sale." If he says, "I want to proceed with the sale and make the term known, so I say I bought it for such-and-such for a period of one year," we say this is a new contract if the seller is pleased with that, otherwise not.