Explanation of the author's statement: "Chapter on Conditions in Sales"
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The Shaykh : Then we move on to the new lesson, and we say: "Chapter on Conditions in Sales" —that is, what we are reading— "Chapter on Conditions in Sales". Conditions is the plural of condition, and in language it means a sign or marker. Hence the saying of Allah the Exalted: [Muhammad 47:18] As for its technical definition, it is according to what is being conditioned upon. It may refer to that upon which validity depends, meaning "that whose absence necessitates absence, and whose presence does not necessitate presence". Thus, ablution is a condition for the validity of prayer; its absence necessitates the invalidity of the prayer. Does its presence necessitate the presence of the prayer? No, because a person may perform ablution and not pray. Now, conditions in sales are not the same as conditions of sales. Conditions in sales are compelling one of the contracting parties to do what is not obligatory upon him by virtue of the contract. These are the conditions in sales, and likewise in other contracts: compelling one of the two contracting parties to do what is not obligatory upon him by virtue of the contract. As for what is obligatory upon him by virtue of the contract, if it is stipulated, it falls under the category of emphasis. ... From the category of what? Emphasis, not confirmation. Emphasis is more eloquent than confirmation. Allah the Exalted said: [An-Nahl 16:91] and He did not say "after confirming them." This is a linguistic benefit noted in the margin. Now.
So, what are conditions in sales? Compelling one of the contracting parties to do what is not obligatory upon the other by virtue of the contract. Now, the difference between them—that is, between conditions in sales and conditions of sales—is in three aspects. The first aspect is that conditions of sales are established by the Lawgiver, while conditions in sales are established by one of the contracting parties.
Second, the validity of the sale depends on conditions of sales, while the binding nature of the sale depends on conditions in sales. It is valid, but not binding, because the one who has the condition, if it is not fulfilled for him, has the option to cancel. Is that clear?
The third difference is that conditions of sales cannot be waived, while conditions in sales can be waived. Who waives them? The one who has the condition, not the one upon whom the condition is imposed. The one who has the condition.
The fourth difference is that all conditions of sales are valid and considered, because they are established by the Shari'ah. As for conditions in sales, some are valid and considered, and some are not valid nor considered, because they are established by humans, and humans may err or be correct. So these are four differences between conditions in sales and conditions of sales. Do these differences apply to conditions in marriage and conditions in marriage? Yes? Yes, they apply. These differences are the same whether in sales or in other contracts.
The author (may Allah have mercy on him) said: "Some of them are valid". Before we mention "some of them are valid", is the considered condition in sales within the body of the contract, after the contract, or before the contract? Yes? The school of thought holds that what is considered is what is in the body of the contract or during the time of the two options: the option of the meeting place and the option of the condition. Are you with us?
The questioner : Unclear.
The Shaykh : Not clear? Now, I sold you this car and I stipulated that I would travel to Makkah on it in the same contract. This is valid; this is in its proper place. I sold you this car, and after the contract was completed by offer and acceptance, I said, "I stipulate upon you that I will travel to Makkah on it." This is valid.
The questioner : It is not valid.
The Shaykh : It is valid because it is during the time of the option, because if you said no, I would say, "I have cancelled it. I now have the option as long as we have not separated, so we can add the condition." I sold you this car, and I have the option for three days. On the second day, I came to you and said, "I stipulate that I will travel to Makkah on it." Is it valid or not? Why? Because it is during the time of the two options. So, what is considered is what is in the body of the contract or during the time of the two options.
What was before that, what was agreed upon before the contract, meaning I and you agreed that I would sell you the car and stipulate that I would travel to Makkah on it, but at the time of the contract we did not mention this condition, either out of forgetfulness or relying on what preceded. Is this condition considered or not?
The questioner : ... .
The Shaykh : Yes, the school of thought says no, but the correct view is that it is considered. First, because of the generality of the hadith: and I did not enter into the contract with you except on this basis. Second, because they permitted the condition to precede the contract in marriage. It is said, what is the difference between this and that? If it is permissible in marriage for the condition to precede the contract, then sales are like it, and there is no difference.
So, conditions in sales are considered whether they coincide with the contract, or come after it during the time of the two options, or come before it and were agreed upon beforehand. Now.
Then do they await except that the Hour should come upon them unexpectedly? But already there have come [some of] its indications
فَهَلْ يَنْظُرُونَ إِلاَّ السَّاعَةَ أَنْ تَأْتِيَهُمْ بَغْتَةً فَقَدْ جاءَ أَشْراطُهاand do not break oaths after their confirmation
ولا تنقضوا الأيمان بعد توكيدهاSo, what are conditions in sales? Compelling one of the contracting parties to do what is not obligatory upon the other by virtue of the contract. Now, the difference between them—that is, between conditions in sales and conditions of sales—is in three aspects. The first aspect is that conditions of sales are established by the Lawgiver, while conditions in sales are established by one of the contracting parties.
Second, the validity of the sale depends on conditions of sales, while the binding nature of the sale depends on conditions in sales. It is valid, but not binding, because the one who has the condition, if it is not fulfilled for him, has the option to cancel. Is that clear?
The third difference is that conditions of sales cannot be waived, while conditions in sales can be waived. Who waives them? The one who has the condition, not the one upon whom the condition is imposed. The one who has the condition.
The fourth difference is that all conditions of sales are valid and considered, because they are established by the Shari'ah. As for conditions in sales, some are valid and considered, and some are not valid nor considered, because they are established by humans, and humans may err or be correct. So these are four differences between conditions in sales and conditions of sales. Do these differences apply to conditions in marriage and conditions in marriage? Yes? Yes, they apply. These differences are the same whether in sales or in other contracts.
The author (may Allah have mercy on him) said: "Some of them are valid". Before we mention "some of them are valid", is the considered condition in sales within the body of the contract, after the contract, or before the contract? Yes? The school of thought holds that what is considered is what is in the body of the contract or during the time of the two options: the option of the meeting place and the option of the condition. Are you with us?
The questioner : Unclear.
The Shaykh : Not clear? Now, I sold you this car and I stipulated that I would travel to Makkah on it in the same contract. This is valid; this is in its proper place. I sold you this car, and after the contract was completed by offer and acceptance, I said, "I stipulate upon you that I will travel to Makkah on it." This is valid.
The questioner : It is not valid.
The Shaykh : It is valid because it is during the time of the option, because if you said no, I would say, "I have cancelled it. I now have the option as long as we have not separated, so we can add the condition." I sold you this car, and I have the option for three days. On the second day, I came to you and said, "I stipulate that I will travel to Makkah on it." Is it valid or not? Why? Because it is during the time of the two options. So, what is considered is what is in the body of the contract or during the time of the two options.
What was before that, what was agreed upon before the contract, meaning I and you agreed that I would sell you the car and stipulate that I would travel to Makkah on it, but at the time of the contract we did not mention this condition, either out of forgetfulness or relying on what preceded. Is this condition considered or not?
The questioner : ... .
The Shaykh : Yes, the school of thought says no, but the correct view is that it is considered. First, because of the generality of the hadith:
Muslims are bound by their conditions
المسلمون على شروطهمSo, conditions in sales are considered whether they coincide with the contract, or come after it during the time of the two options, or come before it and were agreed upon beforehand. Now.