Explanation of the author's statement: "And if he stipulated that there be no loss upon him, or that if the sold item does not sell, he will return it, or that he will not sell it, nor give it in gift, nor free it."
Machine translationRead the Arabic original
The Shaykh : He said, (may Allah have mercy on him), "And if he stipulated that there be no loss upon him, or that if the sold item does not sell, he will return it, or that he will not sell it, nor give it in gift, nor free it, or if he frees it, the clientage belongs to him, or if he does so, the stipulation alone is invalid". The author, (may Allah have mercy on him), mentioned this second category, which is the invalid stipulation that does not invalidate the contract. An invalid stipulation that does not invalidate the contract renders the stipulation invalid while the contract remains valid. The criterion is that the invalidity is specific to the stipulation because it contradicts the requirements of the Shari'ah, and the stipulation is, in its essence, in accordance with the requirements of the Shari'ah, because it does not contradict the requirements of the contract. An example is the stipulation that there be no loss upon him. Who is the one stipulating?
The questioner : The seller.
Another questioner: The buyer.
The Shaykh : The seller? The buyer? A third party? Yes?
The questioner : The buyer's.
The Shaykh : Who is the one stipulating that there be no loss upon him? The buyer, my brother, the buyer, it is clear. He said, "I will buy it from you for one hundred, for one hundred thousand, or more or less, on the condition that there be no loss upon me." That means, if the market drops and I sell it for less, there is no loss upon me; the loss is upon the seller. This stipulation is not valid because it contradicts the requirements of the contract, because the requirement of the contract is that the buyer owns the sold item, so its profit is for him and its loss is upon him. He is the owner. And the Prophet (peace and blessings be upon him) said, meaning, whoever has the profit of something, the loss of it is upon him. And it is known that if this sold item profits, the profit belongs to whom? To the buyer, without doubt. So, if the profit is for the buyer, it is not valid for him to stipulate that the loss be upon the seller. If someone asks, "Is the contract valid?" We say, yes, because the conditions of the contract have been fulfilled and the obstacles have been removed. The defect here is only in the stipulation. Likewise, the stipulation that if the sold item does not sell, he will return it. "If it does not sell"—"does not sell" means it became unsellable.
The questioner : No.
The Shaykh : Huh? What does it mean? It means it increased. "If the sold item does not sell" means it increased and gained a market where it is bought, or else he returns it to the seller. This is also an invalid stipulation because it contradicts the requirements of the contract, since the requirement of the contract is that the sold item belongs to the buyer, whether it sells or not. Yes. The third is, he said, "or that he will not sell it, nor give it in gift". The stipulation that he will not sell it. Who is the one stipulating?
The questioner : The seller.
The Shaykh : The seller?
The questioner : Yes.
The Shaykh : Yes, the seller stipulates upon the buyer that he will not sell it. The author says that the stipulation is invalid, and the apparent meaning of his words is that it is invalid even if the seller has a valid purpose in this stipulation. However, the correct view is that if the seller has a valid purpose in this stipulation, then the stipulation is valid. But if his intention is to restrict the buyer, then the stipulation is not valid.
An example of one who has a purpose is that he wants to sell a slave he owns, who is expensive in his own estimation, to a person he trusts and knows will only do good with this buyer. So he says, "I will sell you my slave, and although he is expensive to me, I know that he will benefit more with you than with me. Therefore, I stipulate that you do not sell him." Is this a purpose that is intended, or not intended?
The questioner : Intended.
The Shaykh : Intended, without doubt. So the stipulation is valid. The stipulation is valid because there is an intended purpose for the seller. Likewise, if he said, "On the condition that you do not sell him to so-and-so, who buys slaves and harms them," here he has a purpose. Is the stipulation valid or not valid?
The questioner : It is valid.
The Shaykh : It is valid. So if the buyer says, "I am free," we say, yes, you are free. If you wish, you accept the stipulation, and if you wish, you do not accept it. If you accept it, you are free. This is part of your freedom: that you accept the stipulation or reject it. Good.
He also stipulated that he will not give it in gift, and the stipulation is not valid. He said, "On the condition that you do not give it in gift to anyone, or do not give it in charity to anyone," so it is not valid. Why? Because this does not have a benefit for the seller; it is merely a restriction on the buyer. This contradicts the contract, or contradicts the absolute contract, so it is not valid because it contradicts the requirements of the contract, so it is not valid. If it is asked, "What is the difference between giving in gift and selling, if he stipulates that he will not sell it, it is valid, and if he stipulates that he will not give it in gift, it is not valid?" We say there is no difference. Therefore, we say the correct view is that if he stipulates that he will not give it in gift, is it valid or not valid?
The questioner : It is valid.
Another questioner: It depends on the details.
The Shaykh : What are the details? If he has an intended purpose, there is no harm. If he does not have an intended purpose, then this stipulation is not valid because it is a restriction on the buyer. Good. If someone says, "It is a restriction on the buyer in any case, because if he does not give it in gift and commits to the stipulation, he can remove it from his ownership by what? By selling, for example." We say, and we also say by selling, as long as we know that the seller's intention in stipulating that he will not give it in gift is that he will not remove it from his ownership. So it is the same whether he uses the wording of gift, or the wording of sale, or otherwise, because matters are judged by their intentions. Likewise, if he stipulates that he will not free him, the stipulation is invalid and the contract is valid, because it contradicts the requirements of the contract, since the requirement of the contract is that the buyer has full disposal. If someone asks, "Is it possible for the seller to have a purpose in stipulating against freeing?"
The questioner : Yes.
The Shaykh : What is it?
The questioner : For example, if the slave has a defect, or he fears that if he frees him, he will not be able to feed himself, so he stipulates that he keep him...
The Shaykh : We say, perhaps there is a purpose, such as what the brother Kamil indicated: that this slave is not able to earn a living, so he stipulates that he not free him so that he does not neglect him. Or perhaps he stipulates that he not free him because if he is freed, he becomes free and disposes of himself as he wishes, and this disposal might lead to open sinfulness and lewdness, or going to the disbelievers. Also, if he was a captive before, he goes to his family among the disbelievers, and the like of that. So the important point is that what is stronger is that if he has a valid purpose, then the stipulation is valid. The most that is in it is that it prevents the buyer from some of the disposal that the Lawgiver gave him, and the buyer waives it by his choice, so the matter is up to him.
The questioner : The seller.
Another questioner: The buyer.
The Shaykh : The seller? The buyer? A third party? Yes?
The questioner : The buyer's.
The Shaykh : Who is the one stipulating that there be no loss upon him? The buyer, my brother, the buyer, it is clear. He said, "I will buy it from you for one hundred, for one hundred thousand, or more or less, on the condition that there be no loss upon me." That means, if the market drops and I sell it for less, there is no loss upon me; the loss is upon the seller. This stipulation is not valid because it contradicts the requirements of the contract, because the requirement of the contract is that the buyer owns the sold item, so its profit is for him and its loss is upon him. He is the owner. And the Prophet (peace and blessings be upon him) said,
The risk is with the guarantee
الخراج بالضمانThe questioner : No.
The Shaykh : Huh? What does it mean? It means it increased. "If the sold item does not sell" means it increased and gained a market where it is bought, or else he returns it to the seller. This is also an invalid stipulation because it contradicts the requirements of the contract, since the requirement of the contract is that the sold item belongs to the buyer, whether it sells or not. Yes. The third is, he said, "or that he will not sell it, nor give it in gift". The stipulation that he will not sell it. Who is the one stipulating?
The questioner : The seller.
The Shaykh : The seller?
The questioner : Yes.
The Shaykh : Yes, the seller stipulates upon the buyer that he will not sell it. The author says that the stipulation is invalid, and the apparent meaning of his words is that it is invalid even if the seller has a valid purpose in this stipulation. However, the correct view is that if the seller has a valid purpose in this stipulation, then the stipulation is valid. But if his intention is to restrict the buyer, then the stipulation is not valid.
An example of one who has a purpose is that he wants to sell a slave he owns, who is expensive in his own estimation, to a person he trusts and knows will only do good with this buyer. So he says, "I will sell you my slave, and although he is expensive to me, I know that he will benefit more with you than with me. Therefore, I stipulate that you do not sell him." Is this a purpose that is intended, or not intended?
The questioner : Intended.
The Shaykh : Intended, without doubt. So the stipulation is valid. The stipulation is valid because there is an intended purpose for the seller. Likewise, if he said, "On the condition that you do not sell him to so-and-so, who buys slaves and harms them," here he has a purpose. Is the stipulation valid or not valid?
The questioner : It is valid.
The Shaykh : It is valid. So if the buyer says, "I am free," we say, yes, you are free. If you wish, you accept the stipulation, and if you wish, you do not accept it. If you accept it, you are free. This is part of your freedom: that you accept the stipulation or reject it. Good.
He also stipulated that he will not give it in gift, and the stipulation is not valid. He said, "On the condition that you do not give it in gift to anyone, or do not give it in charity to anyone," so it is not valid. Why? Because this does not have a benefit for the seller; it is merely a restriction on the buyer. This contradicts the contract, or contradicts the absolute contract, so it is not valid because it contradicts the requirements of the contract, so it is not valid. If it is asked, "What is the difference between giving in gift and selling, if he stipulates that he will not sell it, it is valid, and if he stipulates that he will not give it in gift, it is not valid?" We say there is no difference. Therefore, we say the correct view is that if he stipulates that he will not give it in gift, is it valid or not valid?
The questioner : It is valid.
Another questioner: It depends on the details.
The Shaykh : What are the details? If he has an intended purpose, there is no harm. If he does not have an intended purpose, then this stipulation is not valid because it is a restriction on the buyer. Good. If someone says, "It is a restriction on the buyer in any case, because if he does not give it in gift and commits to the stipulation, he can remove it from his ownership by what? By selling, for example." We say, and we also say by selling, as long as we know that the seller's intention in stipulating that he will not give it in gift is that he will not remove it from his ownership. So it is the same whether he uses the wording of gift, or the wording of sale, or otherwise, because matters are judged by their intentions. Likewise, if he stipulates that he will not free him, the stipulation is invalid and the contract is valid, because it contradicts the requirements of the contract, since the requirement of the contract is that the buyer has full disposal. If someone asks, "Is it possible for the seller to have a purpose in stipulating against freeing?"
The questioner : Yes.
The Shaykh : What is it?
The questioner : For example, if the slave has a defect, or he fears that if he frees him, he will not be able to feed himself, so he stipulates that he keep him...
The Shaykh : We say, perhaps there is a purpose, such as what the brother Kamil indicated: that this slave is not able to earn a living, so he stipulates that he not free him so that he does not neglect him. Or perhaps he stipulates that he not free him because if he is freed, he becomes free and disposes of himself as he wishes, and this disposal might lead to open sinfulness and lewdness, or going to the disbelievers. Also, if he was a captive before, he goes to his family among the disbelievers, and the like of that. So the important point is that what is stronger is that if he has a valid purpose, then the stipulation is valid. The most that is in it is that it prevents the buyer from some of the disposal that the Lawgiver gave him, and the buyer waives it by his choice, so the matter is up to him.