The discussion regarding defective conditions in sales.
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The questioner : He (may Allah have mercy on him) said: "If he stipulates that he shall not suffer a loss, or that if the sold item perishes he will return it, or that he will not sell it, nor give it as a gift, nor... or that if he frees a slave, the patronage belongs to him, or that he will do such and such, then the condition alone is invalid, except if he stipulates the freeing of a slave."
The Shaykh : In the name of Allah, the Most Gracious, the Most Merciful. We have previously mentioned that some conditions are defective and invalidate the contract. So, what is one of them? Brother?
The questioner : ... .
The Shaykh : Defective conditions that invalidate the contract.
The questioner : He did not stipulate, O Shaykh.
The Shaykh : The one next to you?
The questioner : I, O Shaykh?
The Shaykh : Yes.
The questioner : He did not attend the previous lesson.
The Shaykh : He did not attend, Sharafi?
The questioner : Listen, O Shaykh. A defective condition that invalidates the contract, such as one party stipulating another condition upon the other party, so...
The Shaykh : Another condition?
The questioner : Yes.
The Shaykh : Another condition.
The questioner : Another contract.
The Shaykh : Another contract?
The questioner : Combining two conditions in one contract.
The Shaykh : Combining two conditions in one contract?
The questioner : Like a sale, a forward sale, and a loan.
The Shaykh : It is not valid, yes?
The questioner : One party stipulates another contract upon the other party within the same...
The Shaykh : That one party stipulates another contract upon the other party within the same contract. What is an example? Yes, an example.
The questioner : That he stipulates selling him a commodity...
The Shaykh : I sold you my house on the condition that you rent me your house.
The questioner : ... .
The Shaykh : That you rent me your house.
The questioner : ... .
The Shaykh : Huh? I sold you this house on the condition that you rent me your house for a year. This is it. Combining a sale and a lease, so it is not valid. All right, come, Ahmad al-Ghanim? I sold you this house on the condition that you pledge your house to me for its price.
The questioner : ... Again? ... Again?
The Shaykh : I sold you my house for one hundred thousand on the condition that you pledge your house to me for its price?
The questioner : Correct.
The Shaykh : Another contract?
The questioner : Correct.
The Shaykh : In the course of stipulating another contract, or otherwise?
The questioner : In stipulating another contract.
The Shaykh : All right, we mentioned that stipulating another contract invalidates the sale.
The questioner : But is this in the interest of the sale?
The Shaykh : This is in the interest of... Yes, because it is in his interest, so it is valid. All right, what is the stronger position regarding combining two contracts? Suwailan?
The questioner : The correct view is that it is permissible and the sale is valid, except in two cases.
The Shaykh : The correct view is that it is permissible except in two cases. What are they?
The questioner : The case of a loan from which one benefits.
The Shaykh : If he stipulates a loan from which he benefits.
The questioner : Or a scheme to circumvent usury or interest.
The Shaykh : Or a scheme to circumvent usury or interest. All right, Salim? What is an example of a scheme to circumvent usury or interest?
The questioner : A scheme to circumvent usury or interest, for example, I buy a car from you and I buy it for a deferred price, and when I buy it...
The Shaykh : No, O Salim, that is not it. Ibrahim?
The questioner : A person has one hundred sa' of good wheat and another person has two hundred sa' of poor wheat... The owner of the good wheat says, sell me this... on the condition that you sell me the poor one... So here is a scheme... one hundred sa' of good for two hundred, so it is a scheme to circumvent usury or interest.
The Shaykh : He has one hundred sa' of good wheat and two hundred sa' of poor wheat. If he sells one for the other, it is not permissible due to the excess. So he says, sell me two hundred sa' of wheat for one hundred dirhams on the condition that I sell you one hundred sa' of good wheat for one hundred dirhams. This is not permissible because it is a scheme to sell one hundred sa' of good wheat for two hundred sa' of poor wheat. All right, this is the correct view.
If it is said, how do you validate this when the Prophet (peace and blessings be upon him) prohibited two sales in one sale? Yasser?
The questioner : We say that this hadith, which is about two sales in one sale, does not apply to the case we have here. It only applies to one case, which is the buy-back sale used to disguise a loan.
The Shaykh : Yes.
The questioner : Therefore, the Prophet (peace and blessings be upon him) said:Sunan Abi Dawud 3461Hasan (Al-Albani)
The Shaykh : Because this hadith is general, and the hadith about the buy-back sale used to disguise a loan clarifies it. And this is the correct view: that it is general regarding the issue of the buy-back sale used to disguise a loan. And that is, O 'Abdullah? 'Abdullah al-...?
The questioner : 'Awafi.
The Shaykh : 'Awafi.
The questioner : Yes.
The Shaykh : Yes, what is the issue of the buy-back sale used to disguise a loan?
The questioner : The issue of the buy-back sale used to disguise a loan is that I buy from you, for example, a car for one hundred thousand, deferred for a year or six months, and then you buy it from me for less than its value, for ninety thousand or...
The Shaykh : Cash.
The questioner : Cash.
The Shaykh : All right, this is correct, but I warn you when giving examples not to bring up two cases, because it becomes confusing... What do you say, for example, for ninety thousand or one hundred? No, just say ninety thousand and stop, because it is an illustrative example, not a real case, so we do not need to distort it. Let us return to the lesson now. It says, no, the discussion, O brothers. The condition that he shall not suffer a loss, what is the ruling on this condition, O Shahri?
The questioner : This is a defective condition.
The Shaykh : One that invalidates the contract?
The questioner : Yes, that is right.
The Shaykh : Defective and invalidating?
The questioner : No, it is not defective and invalidating.
The Shaykh : Huh?
The questioner : The contract is valid, but the condition is not valid.
The Shaykh : All right, why? Why is the contract valid first, and why is the condition defective?
The questioner : Because this condition relates to... the substance of the contract, and the contract has already been completed with its conditions.
The Shaykh : Meaning it does not return to the core of the contract?
The questioner : Yes.
The Shaykh : All right, second, why is it defective?
The questioner : Because if the buyer stipulates that he shall not suffer a loss, in the first case, if the sale is completed for him, the seller has no share in that profit. And in both cases, if he has, meaning, a guarantee of this profit, he benefits from it, so he has the benefit.
The Shaykh : We have lengthened it and tired ourselves a bit on this path, huh?
The questioner : All right, meaning in this case, the buyer...
The Shaykh : The buyer said he stipulated that he shall not suffer a loss.
The questioner : Yes.
The Shaykh : We say this condition is not valid.
The questioner : We say to him: if you profit, the seller has nothing, and if you lose, you stipulated it upon the seller.
The Shaykh : Meaning the opposite analogy?
The questioner : Yes.
The Shaykh : No, there is nothing clearer than this. It is clear. Khuzraj?
The questioner : Because it is outside the implication of the contract, because the implication of the contract is that when a Muslim buys a commodity, its profit is for him and its loss is upon him.
The Shaykh : What is the evidence?
The questioner : The saying of the Prophet (peace and blessings be upon him):
The Shaykh : Yes, is it clear, O 'Abd al-'Aziz?
The questioner : Yes, indeed.
The Shaykh : This is it, because once it enters his ownership, its profit is for him and its loss is upon him. All right, "if the sold item perishes, he will return it," what is the ruling on this condition, O Samih?
The questioner : This condition is not valid, but the contract is valid.
The Shaykh : Why is this condition not valid?
The questioner : Because it contradicts the implication of the contract, because its implication is that the buyer owns the commodity.
The Shaykh : It contradicts its implication, because its implication is that the buyer owns the commodity.
The questioner : Whether it perishes or not.
The Shaykh : So its profit is for him and its loss is upon him. All right, is it like what some people do now, selling him the commodity and saying, whatever you have not disposed of, the sale is completed for it, and whatever you have not disposed of, return it.
The questioner : This condition does not apply to it, because here the sale has not been completed, the sold item is unknown, the amount sold is unknown.
The Shaykh : This condition is defective and invalidating.
The questioner : Yes.
The Shaykh : Because it returns to the ignorance of the sold item and the ignorance of the price. All right, if he said, I sold you this, and if you find it defective, return it.
The questioner : This condition is valid.
The Shaykh : Correct?
The questioner : It agrees with the implication of the contract.
The Shaykh : And what do you say, people?
The questioner : Correct.
The Shaykh : Valid? Yes, yes, because this is the implication of the contract: that the defective item is returned. If he stipulates not to sell the sold item? Yes?
The questioner : ... The author says it is not valid, but the correct view is that it is valid.
The Shaykh : All right, according to the school of jurisprudence, it is not valid. Why?
The questioner : Because... it is a defective condition.
The Shaykh : Yes, why?
The questioner : Defective, but not invalidating.
The Shaykh : Yes, why?
The questioner : Because the implication of the contract is that the seller...
Another questioner: Because the implication of the contract is that the buyer disposes of it himself.
The Shaykh : Yes, the implication of the contract is that the buyer has absolute disposal. All right, if someone says, O Khalid, this is the implication of the contract, but he agreed to commit to this condition not to sell it.
The questioner : And according to the school of jurisprudence, it is not valid at all.
The Shaykh : Yes, but they said because this contradicts the implication of the contract, because the implication of the contract is that the buyer disposes of it as he wishes.
The questioner : ... And it is not by the placement of the contracting parties, but by the placement of the Lawgiver...
The Shaykh : And what...?
The questioner : So he does not have the right to drop it.
The Shaykh : Meaning he contradicted the Book of Allah?
The questioner : It is not by the command...
The Shaykh : All right, yes?
The questioner : On the contrary, meaning he brought harm, O Shaykh.
The Shaykh : Of whom?
The questioner : Upon the seller... the sold goods upon him...
The Shaykh : Upon the buyer, meaning?
The questioner : Upon the buyer.
The Shaykh : All right, did he agree?
The questioner : ... Shaykh?
The Shaykh : I sold you this car on the condition that you do not sell it. He said, I sold him this car on the condition that you do not sell it.
The questioner : It is... O Shaykh.
Another questioner: If I sold you the land, not to sell it to so-and-so...
The Shaykh : No, this is an example of one with a purpose. But if there is no purpose?
The questioner : Permissible.
The Shaykh : Permissible.
The questioner : If the buyer accepts.
The Shaykh : If the buyer accepts, it is permissible. 'Abd Allah?
The questioner : No, another... condition.
The Shaykh : What?
The questioner : And the seller is valid because the condition is defective.
The Shaykh : Why? What invalidated it? The original rule for conditions is validity.
The questioner : Because it contradicts the implication of the contract.
The Shaykh : Since the implication of the contract is that a person is free in his disposal. All right, he says an interjected phrase. All right, we mentioned that the stronger position in this issue is contrary to what the author established. Adam? What did we say?
The questioner : Yes, in this issue, it is permissible if there is a purpose, meaning, if the seller has a valid purpose, it is permissible, meaning...
The Shaykh : It is permissible if the seller has a valid purpose.
The questioner : Yes.
The Shaykh : Related to the interest of the sold item.
The questioner : Yes, indeed.
The Shaykh : For example?
The questioner : Like not freeing a slave, or not freeing...
The Shaykh : Not selling. This is an example of not selling. What is an example of a valid purpose?
The questioner : Like valid purposes, meaning, he stipulated upon him not to sell it so that...
The Shaykh : He stipulated not to sell it so that?
The questioner : So that he does not miss, meaning, the interest of the sold item.
The Shaykh : What is the interest?
The questioner : Like he fears for the slave, for example, by freeing him.
The Shaykh : Freeing? All right, freeing a slave.
The questioner : Me?
The Shaykh : Yes, that is right.
The questioner : For example, if he sells a sick slave and the seller fears that the buyer will sell him ... so that he becomes a burden on others, he stipulates that he not sell him so that he does not become a burden.
The Shaykh : No. Yes, is that right?
The questioner : For example, he said, "I sold you ..."
The Shaykh : I am asking what the purpose is. We now understand that this condition is defective and that the correct ruling is that if the seller has a purpose, there is no harm. So what is the purpose?
The questioner : Preventing harm to the item sold.
The Shaykh : Okay, how is the harm prevented? I mean, for example, is this slave ...?
The questioner : He is harmed by the buyer by being beaten.
The Shaykh : He is dear to the seller, is that it?
The questioner : Yes.
The Shaykh : And he did not take him out of his ownership except out of consideration for the buyer, fearing that the buyer will sell him to a person who will beat him or hurt him or burden him with what he cannot bear, so he stipulated that he not sell him, whether to a specific person or not. The correct ruling is that if there is a purpose, there is no harm. Okay.
The Shaykh : In the name of Allah, the Most Gracious, the Most Merciful. We have previously mentioned that some conditions are defective and invalidate the contract. So, what is one of them? Brother?
The questioner : ... .
The Shaykh : Defective conditions that invalidate the contract.
The questioner : He did not stipulate, O Shaykh.
The Shaykh : The one next to you?
The questioner : I, O Shaykh?
The Shaykh : Yes.
The questioner : He did not attend the previous lesson.
The Shaykh : He did not attend, Sharafi?
The questioner : Listen, O Shaykh. A defective condition that invalidates the contract, such as one party stipulating another condition upon the other party, so...
The Shaykh : Another condition?
The questioner : Yes.
The Shaykh : Another condition.
The questioner : Another contract.
The Shaykh : Another contract?
The questioner : Combining two conditions in one contract.
The Shaykh : Combining two conditions in one contract?
The questioner : Like a sale, a forward sale, and a loan.
The Shaykh : It is not valid, yes?
The questioner : One party stipulates another contract upon the other party within the same...
The Shaykh : That one party stipulates another contract upon the other party within the same contract. What is an example? Yes, an example.
The questioner : That he stipulates selling him a commodity...
The Shaykh : I sold you my house on the condition that you rent me your house.
The questioner : ... .
The Shaykh : That you rent me your house.
The questioner : ... .
The Shaykh : Huh? I sold you this house on the condition that you rent me your house for a year. This is it. Combining a sale and a lease, so it is not valid. All right, come, Ahmad al-Ghanim? I sold you this house on the condition that you pledge your house to me for its price.
The questioner : ... Again? ... Again?
The Shaykh : I sold you my house for one hundred thousand on the condition that you pledge your house to me for its price?
The questioner : Correct.
The Shaykh : Another contract?
The questioner : Correct.
The Shaykh : In the course of stipulating another contract, or otherwise?
The questioner : In stipulating another contract.
The Shaykh : All right, we mentioned that stipulating another contract invalidates the sale.
The questioner : But is this in the interest of the sale?
The Shaykh : This is in the interest of... Yes, because it is in his interest, so it is valid. All right, what is the stronger position regarding combining two contracts? Suwailan?
The questioner : The correct view is that it is permissible and the sale is valid, except in two cases.
The Shaykh : The correct view is that it is permissible except in two cases. What are they?
The questioner : The case of a loan from which one benefits.
The Shaykh : If he stipulates a loan from which he benefits.
The questioner : Or a scheme to circumvent usury or interest.
The Shaykh : Or a scheme to circumvent usury or interest. All right, Salim? What is an example of a scheme to circumvent usury or interest?
The questioner : A scheme to circumvent usury or interest, for example, I buy a car from you and I buy it for a deferred price, and when I buy it...
The Shaykh : No, O Salim, that is not it. Ibrahim?
The questioner : A person has one hundred sa' of good wheat and another person has two hundred sa' of poor wheat... The owner of the good wheat says, sell me this... on the condition that you sell me the poor one... So here is a scheme... one hundred sa' of good for two hundred, so it is a scheme to circumvent usury or interest.
The Shaykh : He has one hundred sa' of good wheat and two hundred sa' of poor wheat. If he sells one for the other, it is not permissible due to the excess. So he says, sell me two hundred sa' of wheat for one hundred dirhams on the condition that I sell you one hundred sa' of good wheat for one hundred dirhams. This is not permissible because it is a scheme to sell one hundred sa' of good wheat for two hundred sa' of poor wheat. All right, this is the correct view.
If it is said, how do you validate this when the Prophet (peace and blessings be upon him) prohibited two sales in one sale? Yasser?
The questioner : We say that this hadith, which is about two sales in one sale, does not apply to the case we have here. It only applies to one case, which is the buy-back sale used to disguise a loan.
The Shaykh : Yes.
The questioner : Therefore, the Prophet (peace and blessings be upon him) said:
he should have the lesser of the two or it will involve usury
له أوكسهما أو الرباThe Shaykh : Because this hadith is general, and the hadith about the buy-back sale used to disguise a loan clarifies it. And this is the correct view: that it is general regarding the issue of the buy-back sale used to disguise a loan. And that is, O 'Abdullah? 'Abdullah al-...?
The questioner : 'Awafi.
The Shaykh : 'Awafi.
The questioner : Yes.
The Shaykh : Yes, what is the issue of the buy-back sale used to disguise a loan?
The questioner : The issue of the buy-back sale used to disguise a loan is that I buy from you, for example, a car for one hundred thousand, deferred for a year or six months, and then you buy it from me for less than its value, for ninety thousand or...
The Shaykh : Cash.
The questioner : Cash.
The Shaykh : All right, this is correct, but I warn you when giving examples not to bring up two cases, because it becomes confusing... What do you say, for example, for ninety thousand or one hundred? No, just say ninety thousand and stop, because it is an illustrative example, not a real case, so we do not need to distort it. Let us return to the lesson now. It says, no, the discussion, O brothers. The condition that he shall not suffer a loss, what is the ruling on this condition, O Shahri?
The questioner : This is a defective condition.
The Shaykh : One that invalidates the contract?
The questioner : Yes, that is right.
The Shaykh : Defective and invalidating?
The questioner : No, it is not defective and invalidating.
The Shaykh : Huh?
The questioner : The contract is valid, but the condition is not valid.
The Shaykh : All right, why? Why is the contract valid first, and why is the condition defective?
The questioner : Because this condition relates to... the substance of the contract, and the contract has already been completed with its conditions.
The Shaykh : Meaning it does not return to the core of the contract?
The questioner : Yes.
The Shaykh : All right, second, why is it defective?
The questioner : Because if the buyer stipulates that he shall not suffer a loss, in the first case, if the sale is completed for him, the seller has no share in that profit. And in both cases, if he has, meaning, a guarantee of this profit, he benefits from it, so he has the benefit.
The Shaykh : We have lengthened it and tired ourselves a bit on this path, huh?
The questioner : All right, meaning in this case, the buyer...
The Shaykh : The buyer said he stipulated that he shall not suffer a loss.
The questioner : Yes.
The Shaykh : We say this condition is not valid.
The questioner : We say to him: if you profit, the seller has nothing, and if you lose, you stipulated it upon the seller.
The Shaykh : Meaning the opposite analogy?
The questioner : Yes.
The Shaykh : No, there is nothing clearer than this. It is clear. Khuzraj?
The questioner : Because it is outside the implication of the contract, because the implication of the contract is that when a Muslim buys a commodity, its profit is for him and its loss is upon him.
The Shaykh : What is the evidence?
The questioner : The saying of the Prophet (peace and blessings be upon him):
The risk is with the guarantee
الخراج بالضمانThe Shaykh : Yes, is it clear, O 'Abd al-'Aziz?
The questioner : Yes, indeed.
The Shaykh : This is it, because once it enters his ownership, its profit is for him and its loss is upon him. All right, "if the sold item perishes, he will return it," what is the ruling on this condition, O Samih?
The questioner : This condition is not valid, but the contract is valid.
The Shaykh : Why is this condition not valid?
The questioner : Because it contradicts the implication of the contract, because its implication is that the buyer owns the commodity.
The Shaykh : It contradicts its implication, because its implication is that the buyer owns the commodity.
The questioner : Whether it perishes or not.
The Shaykh : So its profit is for him and its loss is upon him. All right, is it like what some people do now, selling him the commodity and saying, whatever you have not disposed of, the sale is completed for it, and whatever you have not disposed of, return it.
The questioner : This condition does not apply to it, because here the sale has not been completed, the sold item is unknown, the amount sold is unknown.
The Shaykh : This condition is defective and invalidating.
The questioner : Yes.
The Shaykh : Because it returns to the ignorance of the sold item and the ignorance of the price. All right, if he said, I sold you this, and if you find it defective, return it.
The questioner : This condition is valid.
The Shaykh : Correct?
The questioner : It agrees with the implication of the contract.
The Shaykh : And what do you say, people?
The questioner : Correct.
The Shaykh : Valid? Yes, yes, because this is the implication of the contract: that the defective item is returned. If he stipulates not to sell the sold item? Yes?
The questioner : ... The author says it is not valid, but the correct view is that it is valid.
The Shaykh : All right, according to the school of jurisprudence, it is not valid. Why?
The questioner : Because... it is a defective condition.
The Shaykh : Yes, why?
The questioner : Defective, but not invalidating.
The Shaykh : Yes, why?
The questioner : Because the implication of the contract is that the seller...
Another questioner: Because the implication of the contract is that the buyer disposes of it himself.
The Shaykh : Yes, the implication of the contract is that the buyer has absolute disposal. All right, if someone says, O Khalid, this is the implication of the contract, but he agreed to commit to this condition not to sell it.
The questioner : And according to the school of jurisprudence, it is not valid at all.
The Shaykh : Yes, but they said because this contradicts the implication of the contract, because the implication of the contract is that the buyer disposes of it as he wishes.
The questioner : ... And it is not by the placement of the contracting parties, but by the placement of the Lawgiver...
The Shaykh : And what...?
The questioner : So he does not have the right to drop it.
The Shaykh : Meaning he contradicted the Book of Allah?
The questioner : It is not by the command...
The Shaykh : All right, yes?
The questioner : On the contrary, meaning he brought harm, O Shaykh.
The Shaykh : Of whom?
The questioner : Upon the seller... the sold goods upon him...
The Shaykh : Upon the buyer, meaning?
The questioner : Upon the buyer.
The Shaykh : All right, did he agree?
The questioner : ... Shaykh?
The Shaykh : I sold you this car on the condition that you do not sell it. He said, I sold him this car on the condition that you do not sell it.
The questioner : It is... O Shaykh.
Another questioner: If I sold you the land, not to sell it to so-and-so...
The Shaykh : No, this is an example of one with a purpose. But if there is no purpose?
The questioner : Permissible.
The Shaykh : Permissible.
The questioner : If the buyer accepts.
The Shaykh : If the buyer accepts, it is permissible. 'Abd Allah?
The questioner : No, another... condition.
The Shaykh : What?
The questioner : And the seller is valid because the condition is defective.
The Shaykh : Why? What invalidated it? The original rule for conditions is validity.
The questioner : Because it contradicts the implication of the contract.
The Shaykh : Since the implication of the contract is that a person is free in his disposal. All right, he says an interjected phrase. All right, we mentioned that the stronger position in this issue is contrary to what the author established. Adam? What did we say?
The questioner : Yes, in this issue, it is permissible if there is a purpose, meaning, if the seller has a valid purpose, it is permissible, meaning...
The Shaykh : It is permissible if the seller has a valid purpose.
The questioner : Yes.
The Shaykh : Related to the interest of the sold item.
The questioner : Yes, indeed.
The Shaykh : For example?
The questioner : Like not freeing a slave, or not freeing...
The Shaykh : Not selling. This is an example of not selling. What is an example of a valid purpose?
The questioner : Like valid purposes, meaning, he stipulated upon him not to sell it so that...
The Shaykh : He stipulated not to sell it so that?
The questioner : So that he does not miss, meaning, the interest of the sold item.
The Shaykh : What is the interest?
The questioner : Like he fears for the slave, for example, by freeing him.
The Shaykh : Freeing? All right, freeing a slave.
The questioner : Me?
The Shaykh : Yes, that is right.
The questioner : For example, if he sells a sick slave and the seller fears that the buyer will sell him ... so that he becomes a burden on others, he stipulates that he not sell him so that he does not become a burden.
The Shaykh : No. Yes, is that right?
The questioner : For example, he said, "I sold you ..."
The Shaykh : I am asking what the purpose is. We now understand that this condition is defective and that the correct ruling is that if the seller has a purpose, there is no harm. So what is the purpose?
The questioner : Preventing harm to the item sold.
The Shaykh : Okay, how is the harm prevented? I mean, for example, is this slave ...?
The questioner : He is harmed by the buyer by being beaten.
The Shaykh : He is dear to the seller, is that it?
The questioner : Yes.
The Shaykh : And he did not take him out of his ownership except out of consideration for the buyer, fearing that the buyer will sell him to a person who will beat him or hurt him or burden him with what he cannot bear, so he stipulated that he not sell him, whether to a specific person or not. The correct ruling is that if there is a purpose, there is no harm. Okay.