Continuation of the explanation of the hadith: (Abu Hurayrah (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) forbade the sale of al-hasat and the sale of gharar).
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The Shaykh : He says: Mishkat al-Masabih 2854 We mentioned that it has several forms. Gharar is anything that contains ignorance and possibility; anything that contains ignorance and possibility is gharar. And on this basis, its conjunction with the sale of al-hasat is from the category of conjoining the general?
The student: To the specific.
The Shaykh : It is from the category of conjoining the general to the specific, and this is permissible in the Arabic language. So the specific that was mentioned is like an example presented before this general rule. It is as if the example in the hadith is presented before this general rule. The word gharar, we said, is anything that contains ignorance and possibility of loss or gain, because that is from the category of maysir (gambling). Indeed, the reality of maysir is this: it is a transaction that takes place between two competing parties, one of whom is either a gainer or a loser. Therefore, the sale of gharar is from maysir... The prohibition of it is very apparent, because if he is a gainer, that leads him to greed, avarice, and following after material things and the worldly life, because he has earned. He wants this earning to continue, so you find him playing with his worldly life and neglecting his religion. And if the matter is the opposite, that he is a loser, it brings him regret, sadness, and dislike of his partner who defeated him, which necessitates enmity between them. For this reason, Allah the Exalted said:[Al-Ma'idah 5:91] He said: [Al-Ma'idah 5:91] And it is clear that the defeated party, even if the transaction was by his choice, must have something in his heart. So it is evident that maysir is harm to the defeated party, or otherwise to the victor?
The student: ...
The Shaykh : To both of them, to both of them, because the victor has in his heart love of victory, prominence, greed, avarice, love of wealth, and turning away from what he was created for, because he earns, and souls are naturally inclined to love wealth[Al-Fajr 89:20] [Al-'Adiyat 100:8] meaning wealth For this reason, the Prophet (peace and blessings be upon him) forbade the sale of gharar. So the wisdom therefore necessitates the prohibition of that, and this prohibition is for prohibition (tahrim).
And we have known from the well-known rule among the jurists (may Allah have mercy on them) that anything whose doing is forbidden becomes forbidden from the perspective of the ruling of obligation (taklifi), and defective from the perspective of the ruling of status (wadi'), is that not so?
The student: Yes.
The Shaykh : The ruling of status, do you know the ruling of status?
The student: Yes, indeed.
The Shaykh : Do you mean the civil law?
The student: No.
The Shaykh : Ah.
The student: ...
The Shaykh : The ruling of status is what describes a contract or an act in terms of validity or defectiveness, or a condition or a preventer, or a cause. This is the ruling of status, because these things are not rulings of obligation; one does not say of them "forbidden" or "obligatory." So they are rulings of status in the sense that the Lawgiver established them as a sign of effectiveness or lack of effectiveness. The important thing is that if the sale of gharar takes place, it is forbidden, and the two contracting parties are sinful, and the sale? Here? It is defective, invalid, and it must be returned. All the previous sales of al-hasat are defective with sin, and they must be returned, or not?
The student: Yes.
The Shaykh : Yes, they must be returned. The sale of gharar is abundant, it has, meaning, hundreds of forms. We will mention some of them now, first: the sale of the fetus, is it gharar or not?
The student: Yes.
The Shaykh : Gharar, because if it is born safe and healthy, the buyer gains, and the opposite is the opposite. And from the sale of gharar is selling the runaway slave, the runaway slave, and what does "runaway" mean?
The student: The one who strays.
The Shaykh : The one who fled from his master. If he sells him, it is not permissible, why? Because he is not in a position to deliver him. He may come and he may not come. If he comes, the gainer is the buyer, and if he does not come, the gainer is the seller and the buyer is the loser.
So if someone says: It is not possible for the buyer to be a gainer, because the buyer has paid the price, the answer is that the buyer of the runaway slave cannot buy him at the value of a present slave who is in a position to be delivered. If the slave is worth one hundred, how much would we buy him for? For fifty, for example. He is not going to buy him for one hundred. So at that time, if he finds him, he becomes?
The student: A gainer.
The Shaykh : A gainer, he becomes a gainer. And if he does not find him, he is a loser, a loser of fifty without any benefit. Now, what about the stray camel?
The student: Likewise.
The Shaykh : Likewise, a person who has a stray camel, meaning one that has run away from its people, it is not permissible to sell it, why? Because it is not in a position to be delivered; it may come and it may not come. Now, what about the camel in the pasture?
The student: It is in a position to be delivered.
The Shaykh : It is in a position to be delivered. The camel in the pasture is in a position to be delivered, so if he sells his camel that is in the pasture, it is valid, because it is in a position to be delivered, unlike the stray one which, when it sees people, runs away. Now, what about a bird in the air, he has a pigeon that is not in the towers, and he sells it?
The student: It is not permissible.
The Shaykh : Huh?
The student: ...
The Shaykh : Most scholars are of the opinion that it is not valid. They said because the bird in the air is not in a position to be delivered. And some of them say if it is accustomed to returning, its sale is permissible, or not? It is not permissible. And this detail, without doubt, it means, follows the rules, because if it is accustomed to returning, it is like the camel in the pasture that comes at the end of the day, and this one also comes, it comes at the end of the day and one can obtain it. Now, if he sells a debt in the liability of a person?
The student: There is a distinction.
The Shaykh : There is no detail.
The student: It is not permissible.
The Shaykh : It is not permissible. This is well-known from the school of thought that it is not permissible. For example, a man asks a person for one hundred sa' of wheat in his liability, and he sells it to Zayd, then it is not permissible, because it is not in a position to be delivered; it may be obtained and it may not be obtained. Is it valid or not? Perhaps this debtor may become poor, perhaps he may die and the heirs may deny it, perhaps he may disown it. The important thing is that it is not in a position to be delivered, so it is not permissible to sell it. Now, what about selling it to the one who owes it? It is permissible on the condition that the seller does not profit by selling it at the price of its like or less. For example, if he has one hundred sa' of wheat in his liability, and the sa' in the market is worth four riyals, and he says, "I want you to sell me the sa' that are in my liability, sell them to me," and he says, "I will sell them to you for five riyals per sa'," five riyals, in the market it is four. This is not permissible, it is not permissible, why? Because he profited in what has not entered his guarantee, and the Prophet (peace and blessings be upon him) forbade profiting in what has not been guaranteed. The thing that is in the liability of another person for you has not entered your guarantee until now. So if you sell it with profit, you have fallen into what the Messenger (peace and blessings be upon him) forbade. For this reason, the Messenger (peace and blessings be upon him) said to Ibn 'Umar, look, at the price of that day Bulugh al-Maram 7:28. Now, a man sold dirhams, dirhams he has with a person at the price of that day.
The student: ...
The Shaykh : He sold them for dirhams.
The student: ...
The Shaykh : Huh?
The student: ...
The Shaykh : For dirhams, it is not permissible, because this has two prohibitions: because this has two prohibitions: the first prohibition is the lack of possession, and in this, riba al-nasi'ah (usury of deferment) applies. The second is that it is in the liability of another person. Now, if you sell these dirhams for dirhams or dinars to the one who has them in his liability? Here?
The student: ...
The Shaykh : Here, this is permissible, it is permissible, provided that you do not separate and there is nothing between you. So if, for example, he has one thousand dirhams in his liability and you sell them to him for one hundred dinars, it is permissible, but on the condition that he delivers the one hundred dinars to me before separating, because the sale of gold for silver requires?
The student: Mutual possession.
The Shaykh : Mutual possession before separating. Now, is there another condition? The hadith of Ibn 'Umar that we referred to, before it was?
The student: At the price of the day.
The Shaykh : At the price of the day or less, not more. For example, one hundred dirhams, we said one hundred or one thousand? One thousand dirhams, if they are worth one hundred dinars, and you sell them to him for one hundred and twenty dinars, the sale? The sale is not valid, because I sold them to him for more than their price. If I sold them for one hundred, what is the ruling?
The student: ...
The Shaykh : It is valid with mutual possession. If I sold them for eighty?
The student: It is permissible.
The Shaykh : It is valid, but you may say that if you sold them for eighty, you contradicted the apparent meaning of the hadith of Ibn 'Umar. There is no harm in it being at the price of the day, because its apparent meaning is that you do not take it for less or for a lower price. The answer to that is to say that the intended meaning of his saying "at the price of the day" is that you do not increase. As for if it decreases, that is kindness. This is kindness. And that is indicated by the fact that what is forbidden is profiting in what has not been guaranteed. As for if you sell it for its like, it is permissible. And if you sell it for less, it is more permissible, because this contains leniency toward the debtor. Instead of selling him, for example, one thousand dirhams for one hundred dinars, I sell them for ninety dinars, and there is kindness to him in this.
The student: It is not riba.
The Shaykh : Yes?
The student: It is not riba?
The Shaykh : No, there is no riba in dirhams and dinars. And the question is prohibited at this time. But there is no riba in dirhams and dinars, for this reason we conditioned what?
The student: Mutual possession.
The Shaykh : The exchange of possession must occur before the parties part ways. The important thing is that the rule regarding sales involving excessive uncertainty (gharar) has innumerable forms. What is the rule? It is that the item must be unknown and subject to chance. So, if a man stops at a sale and has a car loaded with watermelons, or is it with small melons?
The student: With watermelons.
The Shaykh : ... Watermelons are general.
The student: With small melons.
The Shaykh : With small melons. So, he said to him, "I will sell you these, each one for one dirham." Is it permissible to sell each one for one dirham, or not?
The student: ... the big ones.
The Shaykh : They are in front of them now.
The student: ...
The Shaykh : Yes, so it is not permissible. Why? Because it is possible that at the bottom there is a small melon, the size of a pomegranate, and you would take many dirhams for it, yet it is not worth a quarter of the value, is it not?
The student: Yes.
The Shaykh : So, if he said, "I will sell it to you all, just as you see it"?
The student: Permissible.
The Shaykh : This is permissible because he sold him the heap or the... or the pile. He did not sell it by count. So, a man wanted to buy from a person a shop. He said... the shop, and said, "I will take from you this merchandise, each one of them, each grain of it for one dirham?"
The student: It is not permissible.
The Shaykh : It is not permissible?
The student: It is not permissible.
The Shaykh : Why?
The student: Because it is gharar.
The Shaykh : Because it is gharar. It is possible that one grain is worth ten and another is not worth...?
The student: ...
The Shaykh : Huh?
The student: It is not worth a riyal.
The Shaykh : It is not worth a riyal, or perhaps not even a quarter of a riyal. So, now there are shops that say everything is five riyals, or everything is ten riyals.
The student: the piece
The Shaykh : Yes, the piece is ten riyals. What do you say?
The student: ...
The Shaykh : This has no gharar. This has no gharar, because he tells you, "Come in and take what you want. Come in and take whatever you please." But if someone said there is gharar for the seller, because the seller has a piece he bought for twenty, for example.
The student: It is not...
The Shaykh : Yes, we say the seller must have known how to get out of it. He knows where to start eating the dumpling. And Allah knows best that the highest price of all the merchandise he has is...?
The student: Ten.
The Shaykh : Ten. The highest is ten, so he will make a profit in any case. Yes. So, there is no ignorance in this matter, because the buyer will choose, and we know, and knowledge belongs to Allah (Mighty and Majestic), that he has known the way out. Otherwise, he would not be able to say, for example, if the appliances are five hundred riyals each and a thousand riyals each, could he say each one is ten?
The student: Forever.
The Shaykh : He cannot say that. Yes. So, the rule, for example, is that the forms are innumerable. Perhaps forms will come that do not occur to the scholars, but they fall under this general rule: the prohibition of selling with gharar.
And from him (may Allah be pleased with him), from Abu Hurayrah (may Allah be pleased with him): That the Messenger of Allah (peace and blessings be upon him) said. So, we have one more issue left.
The Shaykh : Yes, it does not contradict. It does not contradict.
God’s Messenger forbade a transaction determined by throwing stones
نهى رسول الله صلّى الله عليه وسلّم عن بيع الحصاةAnd the sale with gharar.
وعن بيع الغررThe student: To the specific.
The Shaykh : It is from the category of conjoining the general to the specific, and this is permissible in the Arabic language. So the specific that was mentioned is like an example presented before this general rule. It is as if the example in the hadith is presented before this general rule. The word gharar, we said, is anything that contains ignorance and possibility of loss or gain, because that is from the category of maysir (gambling). Indeed, the reality of maysir is this: it is a transaction that takes place between two competing parties, one of whom is either a gainer or a loser. Therefore, the sale of gharar is from maysir... The prohibition of it is very apparent, because if he is a gainer, that leads him to greed, avarice, and following after material things and the worldly life, because he has earned. He wants this earning to continue, so you find him playing with his worldly life and neglecting his religion. And if the matter is the opposite, that he is a loser, it brings him regret, sadness, and dislike of his partner who defeated him, which necessitates enmity between them. For this reason, Allah the Exalted said:
Satan only wants to cause between you animosity and hatred through intoxicants and gambling and to avert you from the remembrance of Allah and from prayer
إنّما يريد الشّيطان أن يوقع بينكم العداوة والبغضاء في الخمر والميسر ويصدّكم عن ذكر الله وعن الصّلاةthrough intoxicants and gambling
في الخمر والميسرThe student: ...
The Shaykh : To both of them, to both of them, because the victor has in his heart love of victory, prominence, greed, avarice, love of wealth, and turning away from what he was created for, because he earns, and souls are naturally inclined to love wealth
And you love wealth with immense love.
وتحبّون المال حبّا جمّاAnd indeed he is, in love of wealth
وإنّه لحبّ الخيرis severe
لشديدAnd we have known from the well-known rule among the jurists (may Allah have mercy on them) that anything whose doing is forbidden becomes forbidden from the perspective of the ruling of obligation (taklifi), and defective from the perspective of the ruling of status (wadi'), is that not so?
The student: Yes.
The Shaykh : The ruling of status, do you know the ruling of status?
The student: Yes, indeed.
The Shaykh : Do you mean the civil law?
The student: No.
The Shaykh : Ah.
The student: ...
The Shaykh : The ruling of status is what describes a contract or an act in terms of validity or defectiveness, or a condition or a preventer, or a cause. This is the ruling of status, because these things are not rulings of obligation; one does not say of them "forbidden" or "obligatory." So they are rulings of status in the sense that the Lawgiver established them as a sign of effectiveness or lack of effectiveness. The important thing is that if the sale of gharar takes place, it is forbidden, and the two contracting parties are sinful, and the sale? Here? It is defective, invalid, and it must be returned. All the previous sales of al-hasat are defective with sin, and they must be returned, or not?
The student: Yes.
The Shaykh : Yes, they must be returned. The sale of gharar is abundant, it has, meaning, hundreds of forms. We will mention some of them now, first: the sale of the fetus, is it gharar or not?
The student: Yes.
The Shaykh : Gharar, because if it is born safe and healthy, the buyer gains, and the opposite is the opposite. And from the sale of gharar is selling the runaway slave, the runaway slave, and what does "runaway" mean?
The student: The one who strays.
The Shaykh : The one who fled from his master. If he sells him, it is not permissible, why? Because he is not in a position to deliver him. He may come and he may not come. If he comes, the gainer is the buyer, and if he does not come, the gainer is the seller and the buyer is the loser.
So if someone says: It is not possible for the buyer to be a gainer, because the buyer has paid the price, the answer is that the buyer of the runaway slave cannot buy him at the value of a present slave who is in a position to be delivered. If the slave is worth one hundred, how much would we buy him for? For fifty, for example. He is not going to buy him for one hundred. So at that time, if he finds him, he becomes?
The student: A gainer.
The Shaykh : A gainer, he becomes a gainer. And if he does not find him, he is a loser, a loser of fifty without any benefit. Now, what about the stray camel?
The student: Likewise.
The Shaykh : Likewise, a person who has a stray camel, meaning one that has run away from its people, it is not permissible to sell it, why? Because it is not in a position to be delivered; it may come and it may not come. Now, what about the camel in the pasture?
The student: It is in a position to be delivered.
The Shaykh : It is in a position to be delivered. The camel in the pasture is in a position to be delivered, so if he sells his camel that is in the pasture, it is valid, because it is in a position to be delivered, unlike the stray one which, when it sees people, runs away. Now, what about a bird in the air, he has a pigeon that is not in the towers, and he sells it?
The student: It is not permissible.
The Shaykh : Huh?
The student: ...
The Shaykh : Most scholars are of the opinion that it is not valid. They said because the bird in the air is not in a position to be delivered. And some of them say if it is accustomed to returning, its sale is permissible, or not? It is not permissible. And this detail, without doubt, it means, follows the rules, because if it is accustomed to returning, it is like the camel in the pasture that comes at the end of the day, and this one also comes, it comes at the end of the day and one can obtain it. Now, if he sells a debt in the liability of a person?
The student: There is a distinction.
The Shaykh : There is no detail.
The student: It is not permissible.
The Shaykh : It is not permissible. This is well-known from the school of thought that it is not permissible. For example, a man asks a person for one hundred sa' of wheat in his liability, and he sells it to Zayd, then it is not permissible, because it is not in a position to be delivered; it may be obtained and it may not be obtained. Is it valid or not? Perhaps this debtor may become poor, perhaps he may die and the heirs may deny it, perhaps he may disown it. The important thing is that it is not in a position to be delivered, so it is not permissible to sell it. Now, what about selling it to the one who owes it? It is permissible on the condition that the seller does not profit by selling it at the price of its like or less. For example, if he has one hundred sa' of wheat in his liability, and the sa' in the market is worth four riyals, and he says, "I want you to sell me the sa' that are in my liability, sell them to me," and he says, "I will sell them to you for five riyals per sa'," five riyals, in the market it is four. This is not permissible, it is not permissible, why? Because he profited in what has not entered his guarantee, and the Prophet (peace and blessings be upon him) forbade profiting in what has not been guaranteed. The thing that is in the liability of another person for you has not entered your guarantee until now. So if you sell it with profit, you have fallen into what the Messenger (peace and blessings be upon him) forbade. For this reason, the Messenger (peace and blessings be upon him) said to Ibn 'Umar
When he asked him about selling camels for dirhams and taking dinars with them, and selling for dinars and taking dirhams with them, he said: There is no harm in taking them at the price of the day.
لمّا سأله أنّه يبيع الإبل بالدّراهم ويأخذ معها الدّنانير، وبالدّنانير ويأخذ عنها الدّراهم قال لا بأس أن تأخذها بسعر يومهاso long as you do not separate leaving something still to be settled (from the exchange)
ما لم تتفرّقا وبينكما شيءThe student: ...
The Shaykh : He sold them for dirhams.
The student: ...
The Shaykh : Huh?
The student: ...
The Shaykh : For dirhams, it is not permissible, because this has two prohibitions: because this has two prohibitions: the first prohibition is the lack of possession, and in this, riba al-nasi'ah (usury of deferment) applies. The second is that it is in the liability of another person. Now, if you sell these dirhams for dirhams or dinars to the one who has them in his liability? Here?
The student: ...
The Shaykh : Here, this is permissible, it is permissible, provided that you do not separate and there is nothing between you. So if, for example, he has one thousand dirhams in his liability and you sell them to him for one hundred dinars, it is permissible, but on the condition that he delivers the one hundred dinars to me before separating, because the sale of gold for silver requires?
The student: Mutual possession.
The Shaykh : Mutual possession before separating. Now, is there another condition? The hadith of Ibn 'Umar that we referred to, before it was?
The student: At the price of the day.
The Shaykh : At the price of the day or less, not more. For example, one hundred dirhams, we said one hundred or one thousand? One thousand dirhams, if they are worth one hundred dinars, and you sell them to him for one hundred and twenty dinars, the sale? The sale is not valid, because I sold them to him for more than their price. If I sold them for one hundred, what is the ruling?
The student: ...
The Shaykh : It is valid with mutual possession. If I sold them for eighty?
The student: It is permissible.
The Shaykh : It is valid, but you may say that if you sold them for eighty, you contradicted the apparent meaning of the hadith of Ibn 'Umar. There is no harm in it being at the price of the day, because its apparent meaning is that you do not take it for less or for a lower price. The answer to that is to say that the intended meaning of his saying "at the price of the day" is that you do not increase. As for if it decreases, that is kindness. This is kindness. And that is indicated by the fact that what is forbidden is profiting in what has not been guaranteed. As for if you sell it for its like, it is permissible. And if you sell it for less, it is more permissible, because this contains leniency toward the debtor. Instead of selling him, for example, one thousand dirhams for one hundred dinars, I sell them for ninety dinars, and there is kindness to him in this.
The student: It is not riba.
The Shaykh : Yes?
The student: It is not riba?
The Shaykh : No, there is no riba in dirhams and dinars. And the question is prohibited at this time. But there is no riba in dirhams and dinars, for this reason we conditioned what?
The student: Mutual possession.
The Shaykh : The exchange of possession must occur before the parties part ways. The important thing is that the rule regarding sales involving excessive uncertainty (gharar) has innumerable forms. What is the rule? It is that the item must be unknown and subject to chance. So, if a man stops at a sale and has a car loaded with watermelons, or is it with small melons?
The student: With watermelons.
The Shaykh : ... Watermelons are general.
The student: With small melons.
The Shaykh : With small melons. So, he said to him, "I will sell you these, each one for one dirham." Is it permissible to sell each one for one dirham, or not?
The student: ... the big ones.
The Shaykh : They are in front of them now.
The student: ...
The Shaykh : Yes, so it is not permissible. Why? Because it is possible that at the bottom there is a small melon, the size of a pomegranate, and you would take many dirhams for it, yet it is not worth a quarter of the value, is it not?
The student: Yes.
The Shaykh : So, if he said, "I will sell it to you all, just as you see it"?
The student: Permissible.
The Shaykh : This is permissible because he sold him the heap or the... or the pile. He did not sell it by count. So, a man wanted to buy from a person a shop. He said... the shop, and said, "I will take from you this merchandise, each one of them, each grain of it for one dirham?"
The student: It is not permissible.
The Shaykh : It is not permissible?
The student: It is not permissible.
The Shaykh : Why?
The student: Because it is gharar.
The Shaykh : Because it is gharar. It is possible that one grain is worth ten and another is not worth...?
The student: ...
The Shaykh : Huh?
The student: It is not worth a riyal.
The Shaykh : It is not worth a riyal, or perhaps not even a quarter of a riyal. So, now there are shops that say everything is five riyals, or everything is ten riyals.
The student: the piece
The Shaykh : Yes, the piece is ten riyals. What do you say?
The student: ...
The Shaykh : This has no gharar. This has no gharar, because he tells you, "Come in and take what you want. Come in and take whatever you please." But if someone said there is gharar for the seller, because the seller has a piece he bought for twenty, for example.
The student: It is not...
The Shaykh : Yes, we say the seller must have known how to get out of it. He knows where to start eating the dumpling. And Allah knows best that the highest price of all the merchandise he has is...?
The student: Ten.
The Shaykh : Ten. The highest is ten, so he will make a profit in any case. Yes. So, there is no ignorance in this matter, because the buyer will choose, and we know, and knowledge belongs to Allah (Mighty and Majestic), that he has known the way out. Otherwise, he would not be able to say, for example, if the appliances are five hundred riyals each and a thousand riyals each, could he say each one is ten?
The student: Forever.
The Shaykh : He cannot say that. Yes. So, the rule, for example, is that the forms are innumerable. Perhaps forms will come that do not occur to the scholars, but they fall under this general rule: the prohibition of selling with gharar.
And from him (may Allah be pleased with him), from Abu Hurayrah (may Allah be pleased with him): That the Messenger of Allah (peace and blessings be upon him) said. So, we have one more issue left.
The Shaykh : Yes, it does not contradict. It does not contradict.