Explanation of the Book of Sales-08
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The Shaykh : Then he said: And from 'Amr ibn Shu'ayb, from his father, from his grandfather (may Allah be pleased with them both), he said: The Messenger of Allah (peace and blessings be upon him) said: Sunan an-Nasa'i 4630Sahih (Darussalam) Yes Jami` at-Tirmidhi 1234Sahih (Darussalam). The five [books] narrated it, and al-Tirmidhi, Ibn Khuzaymah, and al-Hakim graded it as authentic.
He said:Sunan an-Nasa'i 4630Sahih (Darussalam) First, the negation of permissibility implies prohibition. Although some scholars said it may imply dislike, because the opposite of permissibility is two things: dislike or prohibition. But this is contrary to the apparent meaning, for Allah the Exalted sets permissibility as the opposite of what is forbidden, not the opposite of what is disliked. Allah the Exalted said: [An-Nahl 16:116] So when the opposite is negated, its counterpart is established. So we say the apparent meaning of the hadith is that the negation of permissibility here means prohibition.
And his saying "salf" means advancing. From this comes the hadith regarding visiting graves: And from this comes the hadith of Ibn 'Abbas Sahih al-Bukhari 4995 meaning they advance the value over the price that will come in the coming year. So *salf* is the thing that is advanced. It is possible that *salf* is a verbal noun meaning lending, but the intended meaning is advancing.
The sale is well known; it is the exchange of two things with the intention of permanence. Yes, and the "wa" (and) here in his saying is for conjunction. The "wa" is for conjunction, not for separation, because *salf* alone is lawful, and the sale alone is lawful, by His saying: [Al-Baqarah 2:275] But the intended meaning is combining *salf* and the sale.
So what is the form that contains *salf* and the sale? Some scholars said *salf* and the sale is when one says: "I have lent you one hundred dirhams for one hundred *sa'* of wheat for one year, on the condition that you sell me your house." Here, *salf* (which is *salam*) is combined with the sale between the *salf* and the sale. This returns to interpreting two sales in one sale, because it conditions one contract within another contract. So on this, *salf* and the sale is interpreted by what was interpreted as two sales in one sale.
And it was said that the meaning of *salf* here is a loan, meaning it is not permissible for a person to combine a loan and a sale, such as saying: "I sell you my house for one thousand, on the condition that you lend me one thousand." They said this is not permissible. Why? Because the usual case is that this condition benefits whom? The lender. It benefits the lender. And every loan that brings benefit is *riba*. So if you say, "I sell you this house for one thousand, on the condition that you lend me such and such," then this buyer will usually benefit, or he might say, for example, "I will not buy this," or he might say, "I will buy this from you on the condition that you lend me," meaning the reverse of the form. A person offers you a commodity, and you say, "I will buy it from you on the condition that you lend me such and such. I will buy it from you on the condition that you lend me such and such." Here, how does the lender benefit? Because this commodity he offered might not be worth one hundred, and I buy it for one hundred and twenty for what reason?
The student: The loan.
The Shaykh : For the sake of the loan. It is not worth one hundred, but I bought it for one hundred and twenty because he will lend me. And at that time, has he lent me with interest or not?
The student: Yes.
The Shaykh : With interest.
The Shaykh : And it is known that if a loan brings benefit, it is *riba*. Because the original nature of a loan is from the category of kindness and benevolence. So if something of compensation is added to it, it becomes *riba*. It becomes not intended for kindness and benevolence. These are two forms, rather, these are three forms:
The first form is that the intended meaning of *salf* here is *salam*, meaning he advances dirhams for a delayed commodity and conditions a sale with this contract. And on this interpretation, it is like his sayingMuwatta Malik 31:74 on one of the previous interpretations. But this is not actually correct, because combining two contracts in a way that has no legal objection is fine. Combining two contracts in a way that has no legal objection is fine.
The second form is when one says, "I sold you such and such on the condition that you lend me such and such," meaning like when someone asks him to sell him his commodity. He says, "I want you to sell me your house." So he says, "I sell you my house on the condition that you lend me such and such." This is not permissible. Why? Because it brings benefit to whom? The buyer, where he achieved his objective from the house because of lending the seller. And if the seller had not sold to him, he would not have lent to him.
Now, the third form is the reverse. What is the reverse? That he says, "I buy from you such and such on the condition that you lend me such and such." So this is also not valid. So lending is sometimes from the seller, and sometimes from?
The student: The buyer.
The Shaykh : From the buyer. And both of them take the loan out of its intended purpose, because the intended purpose of a loan is kindness. And in this form, or in these two forms, it has been taken out of its intended purpose.
Now he said:Sunan an-Nasa'i 4630Sahih (Darussalam) His saying: Sunan an-Nasa'i 4630Sahih (Darussalam) This is not absolute. And the condition, as we have mentioned before, is divided into two types: a condition for the contract and a condition in the contract, correct?
The student: Yes.
The Shaykh : A condition for the contract and a condition in the contract. The difference between them is that the condition for the contract is what its validity depends on, and the condition in the contract is what its binding nature depends on, meaning that if the condition is missed, the one who has the condition has the choice between ratifying the contract and canceling the contract. But the condition for the contract is not valid except with it.
One of the conditions of sale is that the price is known. So if he sells it for an unknown price, the contract is not valid. Why? Because a condition of its conditions is missing. As for the condition in the contract, it is when one of the two parties to the exchange, or one of the two contracting parties, conditions something that benefits him. This is a condition in the contract, and the binding nature of the contract depends on it. An example of that: He said, "I sold you my house on the condition that I live in it for a year. On the condition that I live in it for a year." This is a condition in the contract. If the buyer does not fulfill it and does not allow him to live in it, I have the choice.
Now, a second difference between them: The condition of the contract is established by the Shari'ah, so no one can neglect it. And the condition in the contract is established by the contracting parties, so each of them can invalidate it. Each of them can invalidate it. Here he says:Sunan an-Nasa'i 4630Sahih (Darussalam) The intended meaning, without doubt, is not the first type, which is the condition of the contract, because the contract contains many conditions. How many conditions of sale are there? The conditions of sale are seven according to the famous position of the school. So it contains several conditions. And the Prophet (peace and blessings be upon him) did not intend this. He only intended the two conditions in the contract. The two conditions in the contract. And here, in the sale, he says in the sale. What does "two conditions in a sale" mean? Are all two conditions in a sale forbidden? Also, this is not absolute. There are two conditions in a sale that are valid by consensus, such as if he says, "I sell you this car on the condition that you pay me the price," and the other says, "And on the condition that you deliver the car to me." These two?
The student: Two conditions.
The Shaykh : A condition from the seller and a condition from the buyer. And these two conditions are valid by consensus. Rather, if he says, "I sell you this car on the condition that the price is immediate and that you pay it to me," these are two conditions from one side: that it is immediate and that he pays it. This is also by consensus. These two conditions are lawful by consensus. The first form: the two conditions are from?
The student: From the contracting parties...
The Shaykh : From both contracting parties. Each one conditioned a condition. And this form: the two conditions are from one of them. And this is also permissible by consensus. Why is it permissible by consensus? Because this is the implication of the contract, so it is established whether the one who conditions it conditions it or not. Because the implication of the absolute contract is that the price is immediate, or is it delayed?
The student: Immediate.
The Shaykh : Immediate. And its implication is also that he delivers it to him, whether the seller conditions that or not. So as long as it is established, then his conditioning only serves what? Only emphasis. There is no doubt in its permissibility, and I think there is no disagreement in it either.
We are left with the condition that is not binding except by their agreement, whose original state is non-existence. The original state is non-existence. So this is the place of disagreement. An example of that: I bought from the owner of the car. I bought from him the load on its back. Let's say it is firewood. It is firewood. Is firewood known, O 'Abd Allah?
The student: Yes, it is known.
The Shaykh : Known. I conditioned from the owner of the car the firewood. I bought from the firewood and conditioned on him that he carry it to the house, and that he bring it into the house, and that he break it. Three conditions. Are these conditions established by the implication of the contract or not?
The student: No.
The Shaykh : No, it is not fixed by the terms of the contract. The requirement of the contract is that if you buy from him the load of firewood in the truck, he unloads it immediately in its place and says, "You... do you understand?"
The student: Yes.
The Shaykh : Now, these two conditions, or rather these three conditions, let us remove one so that it matches the hadith, which is the breaking up. You stipulated that he carry it and bring it into the house. Some scholars said that these two are the conditions the Messenger of Allah (peace and blessings be upon him) prohibited, saying, "It is not permissible to have two conditions in a sale." He said, "These are two conditions in a sale, so they are not permissible." Why? They said, "The Messenger (peace and blessings be upon him) said, 'Two conditions shall not be combined in one contract.'" However, there is a point of consideration here, because these two conditions do not contain a legal prohibition; they do not contain a legal prohibition.
So if someone says, "But they do contain a legal prohibition, because carrying the firewood and bringing it in, if it were not a sale contract, would require a fee. It would require a fee, correct? Now, the ratio of the fee to the price is unknown. I bought it for one hundred and said, 'On the condition that you carry it to the house and bring it into the house.' The price is now one hundred with the two mentioned conditions. We said that if these two conditions were for a fee, the ratio of the fee to the price is unknown. We do not know how to distribute this one hundred between the fee and the value of the firewood. This leads to ambiguity in the price. This leads to ambiguity in the price. This is the reason for the prohibition, even though the Messenger prohibited it. However, this reasoning is defective and refuted, because we ask the proponent of this view: If you stipulated that he carry it to the house without bringing it into the house, is the condition valid or not?
The student: It is valid.
The Shaykh : Is it valid?
The student: Yes.
The Shaykh : Because the Messenger of Allah (peace and blessings be upon him) says: So if you stipulated that he carry it to the house and I unload it there, is it valid or not?
The student: ...
The Shaykh : Now, is it valid?
The student: It is not valid...
The Shaykh : Carrying it from the place of sale to the house? Does he deserve a fee if it were separate?
The student: Yes.
The Shaykh : He deserves it. Now, the ratio of this fee to the price is unknown, unknown... And thus we say that we must apply the hadith to the legal principles. Let us investigate what the two conditions are that, if combined, result in a prohibition, but if one is alone, we are safe from the prohibition. We must apply the hadith to this meaning. To what? To the fact that if there are two conditions that lead the stipulator into a legal prohibition, they are forbidden. And if they do not lead him into a legal prohibition, then the hadith does not include them. The hadith does not include them.
But this also, if someone says, "This is questionable, because the two conditions containing a legal prohibition are forbidden, or because the two conditions containing a legal prohibition are forbidden, whether they are added to the sale or not?" The answer to this is to say that these two conditions do not stand independently in custom, but rather they are subsidiary to a contract. Therefore, he said:Sunan an-Nasa'i 4630Sahih (Darussalam)
Now, the two conditions in a sale: if we say that if they are combined, they contain a legal prohibition, and if they are not combined, they do not contain a legal prohibition, can we apply them to the issue of 'inah? Can we apply them to the issue of 'inah? We can say, "I sold you this item for one hundred dirhams deferred, on the condition that you sell it to me for eighty cash. On the condition that you sell it to me for eighty cash." If I said, "I sold it to you for one hundred deferred," is this one condition permissible or not?
The student: It is permissible.
The Shaykh : It is permissible. "On the condition that you sell it to me for eighty cash" — the second condition entered and invalidated it. The second condition entered and invalidated it. And on this basis, Shaykh al-Islam Ibn Taymiyyah interpreted the hadith, saying that the intended meaning is the issue of 'inah, because it is the one where, if two conditions are combined, they invalidate the contract, and one condition does not invalidate the contract. As you know, we said it does not apply to conditions that are conditions for the contract, nor to conditions in a contract that are established without a condition, where the condition serves only as confirmation, right? Nor to conditions that have a benefit but do not lead to something forbidden. These are three things. Now, we said the first aspect or the first meaning does not fall under the hadith. By consensus or is there disagreement?
The student: By consensus.
The Shaykh : By consensus, because we find that a sale contract contains many conditions. The second aspect also does not fall under it by consensus, and even if there is disagreement, it is very weak. What is it? It is what the contract requires, whether stipulated or not, and the condition here serves only for what?
The student: ...
The Shaykh : For confirmation only. The third, which has a benefit and does not lead to a prohibition, there is disagreement. Some scholars prohibited it, and this is the well-known position in the school of Imam Ahmad, while others permitted it. What is the correct view?
The student: Permissibility.
The Shaykh : Permissibility. If you wish, say in broader terms: Any two conditions, if one is alone, it has no effect, but if they are combined, they have an effect, then they fall under the hadith. And cases other than 'inah may arise. Now, yes.
The reader: In the name of Allah, the Most Gracious, the Most Merciful.
The author (may Allah have mercy on him) said: "And from Amr ibn Shu'ayb, from his father, from his grandfather (may Allah be pleased with them both), he said: The Messenger of Allah (peace and blessings be upon him) said:Jami` at-Tirmidhi 1234Sahih (Darussalam). It was narrated by the five, and al-Tirmidhi, Ibn Khuzaymah, and al-Hakim graded it as authentic. And it was included in 'Ilm al-Hadith from the narration of Abu Hanifah from the aforementioned Amr, with the wording: Bulugh al-Maram 7:25. And from this route, al-Tabarani included it in al-Awsat, and it is a strange narration."
It is not permissible to lend on the condition of a sale
لا يحل سلفٌ وبيعnor two conditions in a sale, nor to profit from what is not possessed, nor to sell what one does not have
ولا شرطان في بيع، ولا ربح ما لم يضمن ولا بيع ما ليس عندكHe said:
It is not permissible to lend on the condition of a sale
لا يحلّ سلف وبيعAnd do not say about what your tongues assert of untruth, "This is lawful and this is unlawful,"
ولا تقولوا لما تصف ألسنتكم الكذب هذا حلال وهذا حرامAnd his saying
A loan and a sale
سلف وبيعYou are our predecessors, and we are in the trail
أنتم سلفنا ونحن في الأثرNarrated Al-Bara': I learnt, 'Glorify the Name of your Lord the Most High' (Surat al-A'la) No 87, before the Prophet (ﷺ) came (to Medina) .
قدم النّبيّ صلّى الله عليه وسلّم وهم يسلفون في الثّمارand sale
وبيعand sale
وبيعBut Allah has permitted trade
وأحلّ الله البيعSo what is the form that contains *salf* and the sale? Some scholars said *salf* and the sale is when one says: "I have lent you one hundred dirhams for one hundred *sa'* of wheat for one year, on the condition that you sell me your house." Here, *salf* (which is *salam*) is combined with the sale between the *salf* and the sale. This returns to interpreting two sales in one sale, because it conditions one contract within another contract. So on this, *salf* and the sale is interpreted by what was interpreted as two sales in one sale.
And it was said that the meaning of *salf* here is a loan, meaning it is not permissible for a person to combine a loan and a sale, such as saying: "I sell you my house for one thousand, on the condition that you lend me one thousand." They said this is not permissible. Why? Because the usual case is that this condition benefits whom? The lender. It benefits the lender. And every loan that brings benefit is *riba*. So if you say, "I sell you this house for one thousand, on the condition that you lend me such and such," then this buyer will usually benefit, or he might say, for example, "I will not buy this," or he might say, "I will buy this from you on the condition that you lend me," meaning the reverse of the form. A person offers you a commodity, and you say, "I will buy it from you on the condition that you lend me such and such. I will buy it from you on the condition that you lend me such and such." Here, how does the lender benefit? Because this commodity he offered might not be worth one hundred, and I buy it for one hundred and twenty for what reason?
The student: The loan.
The Shaykh : For the sake of the loan. It is not worth one hundred, but I bought it for one hundred and twenty because he will lend me. And at that time, has he lent me with interest or not?
The student: Yes.
The Shaykh : With interest.
The Shaykh : And it is known that if a loan brings benefit, it is *riba*. Because the original nature of a loan is from the category of kindness and benevolence. So if something of compensation is added to it, it becomes *riba*. It becomes not intended for kindness and benevolence. These are two forms, rather, these are three forms:
The first form is that the intended meaning of *salf* here is *salam*, meaning he advances dirhams for a delayed commodity and conditions a sale with this contract. And on this interpretation, it is like his saying
forbade two sales in one sale
نهى عن بيعتين في بيعةThe second form is when one says, "I sold you such and such on the condition that you lend me such and such," meaning like when someone asks him to sell him his commodity. He says, "I want you to sell me your house." So he says, "I sell you my house on the condition that you lend me such and such." This is not permissible. Why? Because it brings benefit to whom? The buyer, where he achieved his objective from the house because of lending the seller. And if the seller had not sold to him, he would not have lent to him.
Now, the third form is the reverse. What is the reverse? That he says, "I buy from you such and such on the condition that you lend me such and such." So this is also not valid. So lending is sometimes from the seller, and sometimes from?
The student: The buyer.
The Shaykh : From the buyer. And both of them take the loan out of its intended purpose, because the intended purpose of a loan is kindness. And in this form, or in these two forms, it has been taken out of its intended purpose.
Now he said:
or to stipulate two conditions in one transaction
ولا شرطان في بيعor to stipulate two conditions in one transaction
ولا شرطان في بيعThe student: Yes.
The Shaykh : A condition for the contract and a condition in the contract. The difference between them is that the condition for the contract is what its validity depends on, and the condition in the contract is what its binding nature depends on, meaning that if the condition is missed, the one who has the condition has the choice between ratifying the contract and canceling the contract. But the condition for the contract is not valid except with it.
One of the conditions of sale is that the price is known. So if he sells it for an unknown price, the contract is not valid. Why? Because a condition of its conditions is missing. As for the condition in the contract, it is when one of the two parties to the exchange, or one of the two contracting parties, conditions something that benefits him. This is a condition in the contract, and the binding nature of the contract depends on it. An example of that: He said, "I sold you my house on the condition that I live in it for a year. On the condition that I live in it for a year." This is a condition in the contract. If the buyer does not fulfill it and does not allow him to live in it, I have the choice.
Now, a second difference between them: The condition of the contract is established by the Shari'ah, so no one can neglect it. And the condition in the contract is established by the contracting parties, so each of them can invalidate it. Each of them can invalidate it. Here he says:
or to stipulate two conditions in one transaction
ولا شرطان في بيعThe student: Two conditions.
The Shaykh : A condition from the seller and a condition from the buyer. And these two conditions are valid by consensus. Rather, if he says, "I sell you this car on the condition that the price is immediate and that you pay it to me," these are two conditions from one side: that it is immediate and that he pays it. This is also by consensus. These two conditions are lawful by consensus. The first form: the two conditions are from?
The student: From the contracting parties...
The Shaykh : From both contracting parties. Each one conditioned a condition. And this form: the two conditions are from one of them. And this is also permissible by consensus. Why is it permissible by consensus? Because this is the implication of the contract, so it is established whether the one who conditions it conditions it or not. Because the implication of the absolute contract is that the price is immediate, or is it delayed?
The student: Immediate.
The Shaykh : Immediate. And its implication is also that he delivers it to him, whether the seller conditions that or not. So as long as it is established, then his conditioning only serves what? Only emphasis. There is no doubt in its permissibility, and I think there is no disagreement in it either.
We are left with the condition that is not binding except by their agreement, whose original state is non-existence. The original state is non-existence. So this is the place of disagreement. An example of that: I bought from the owner of the car. I bought from him the load on its back. Let's say it is firewood. It is firewood. Is firewood known, O 'Abd Allah?
The student: Yes, it is known.
The Shaykh : Known. I conditioned from the owner of the car the firewood. I bought from the firewood and conditioned on him that he carry it to the house, and that he bring it into the house, and that he break it. Three conditions. Are these conditions established by the implication of the contract or not?
The student: No.
The Shaykh : No, it is not fixed by the terms of the contract. The requirement of the contract is that if you buy from him the load of firewood in the truck, he unloads it immediately in its place and says, "You... do you understand?"
The student: Yes.
The Shaykh : Now, these two conditions, or rather these three conditions, let us remove one so that it matches the hadith, which is the breaking up. You stipulated that he carry it and bring it into the house. Some scholars said that these two are the conditions the Messenger of Allah (peace and blessings be upon him) prohibited, saying, "It is not permissible to have two conditions in a sale." He said, "These are two conditions in a sale, so they are not permissible." Why? They said, "The Messenger (peace and blessings be upon him) said, 'Two conditions shall not be combined in one contract.'" However, there is a point of consideration here, because these two conditions do not contain a legal prohibition; they do not contain a legal prohibition.
So if someone says, "But they do contain a legal prohibition, because carrying the firewood and bringing it in, if it were not a sale contract, would require a fee. It would require a fee, correct? Now, the ratio of the fee to the price is unknown. I bought it for one hundred and said, 'On the condition that you carry it to the house and bring it into the house.' The price is now one hundred with the two mentioned conditions. We said that if these two conditions were for a fee, the ratio of the fee to the price is unknown. We do not know how to distribute this one hundred between the fee and the value of the firewood. This leads to ambiguity in the price. This leads to ambiguity in the price. This is the reason for the prohibition, even though the Messenger prohibited it. However, this reasoning is defective and refuted, because we ask the proponent of this view: If you stipulated that he carry it to the house without bringing it into the house, is the condition valid or not?
The student: It is valid.
The Shaykh : Is it valid?
The student: Yes.
The Shaykh : Because the Messenger of Allah (peace and blessings be upon him) says:
It is not permissible to have two conditions in a sale
لا يحلّ شرطان في بيعThe student: ...
The Shaykh : Now, is it valid?
The student: It is not valid...
The Shaykh : Carrying it from the place of sale to the house? Does he deserve a fee if it were separate?
The student: Yes.
The Shaykh : He deserves it. Now, the ratio of this fee to the price is unknown, unknown... And thus we say that we must apply the hadith to the legal principles. Let us investigate what the two conditions are that, if combined, result in a prohibition, but if one is alone, we are safe from the prohibition. We must apply the hadith to this meaning. To what? To the fact that if there are two conditions that lead the stipulator into a legal prohibition, they are forbidden. And if they do not lead him into a legal prohibition, then the hadith does not include them. The hadith does not include them.
But this also, if someone says, "This is questionable, because the two conditions containing a legal prohibition are forbidden, or because the two conditions containing a legal prohibition are forbidden, whether they are added to the sale or not?" The answer to this is to say that these two conditions do not stand independently in custom, but rather they are subsidiary to a contract. Therefore, he said:
or to stipulate two conditions in one transaction
ولا شرطان في بيعNow, the two conditions in a sale: if we say that if they are combined, they contain a legal prohibition, and if they are not combined, they do not contain a legal prohibition, can we apply them to the issue of 'inah? Can we apply them to the issue of 'inah? We can say, "I sold you this item for one hundred dirhams deferred, on the condition that you sell it to me for eighty cash. On the condition that you sell it to me for eighty cash." If I said, "I sold it to you for one hundred deferred," is this one condition permissible or not?
The student: It is permissible.
The Shaykh : It is permissible. "On the condition that you sell it to me for eighty cash" — the second condition entered and invalidated it. The second condition entered and invalidated it. And on this basis, Shaykh al-Islam Ibn Taymiyyah interpreted the hadith, saying that the intended meaning is the issue of 'inah, because it is the one where, if two conditions are combined, they invalidate the contract, and one condition does not invalidate the contract. As you know, we said it does not apply to conditions that are conditions for the contract, nor to conditions in a contract that are established without a condition, where the condition serves only as confirmation, right? Nor to conditions that have a benefit but do not lead to something forbidden. These are three things. Now, we said the first aspect or the first meaning does not fall under the hadith. By consensus or is there disagreement?
The student: By consensus.
The Shaykh : By consensus, because we find that a sale contract contains many conditions. The second aspect also does not fall under it by consensus, and even if there is disagreement, it is very weak. What is it? It is what the contract requires, whether stipulated or not, and the condition here serves only for what?
The student: ...
The Shaykh : For confirmation only. The third, which has a benefit and does not lead to a prohibition, there is disagreement. Some scholars prohibited it, and this is the well-known position in the school of Imam Ahmad, while others permitted it. What is the correct view?
The student: Permissibility.
The Shaykh : Permissibility. If you wish, say in broader terms: Any two conditions, if one is alone, it has no effect, but if they are combined, they have an effect, then they fall under the hadith. And cases other than 'inah may arise. Now, yes.
The reader: In the name of Allah, the Most Gracious, the Most Merciful.
The author (may Allah have mercy on him) said: "And from Amr ibn Shu'ayb, from his father, from his grandfather (may Allah be pleased with them both), he said: The Messenger of Allah (peace and blessings be upon him) said: