21- Aug2020
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ELEMENTS OF A VALID SALE

A valid Sale has four essential elements

  • Contract of Transaction (Aqd)

1.1 Offer & acceptance (Ijab-o-Qobool)

The term “Offer” means that one person proposes to either sell his commodity to another person or buy from him and “Acceptance” means that the person who has been offered gives his approval of the proposal. Offer and acceptance are always done in past tense e.g. “I have sold” or “I have purchased” etc. There are two ways of doing it:

  • Oral/Verbal (Quali)

By saying or expressing. The offer (Ijaab) and Acceptance (Qabool) should be communicated orally/verbally between the parties in such a manner that the transaction is executed spontaneously. E.g. one can say “I have sold” but ‘one cannot say “I shall sell to you”.

  • Implied (Isharaa)

By indicating. This of two types.

  • Credit sale (Istijrar)

Example settlement of the bill at the end of the month.

  • Hand to Hand SaIe (Taati)

Exchange of Money with goods without uttering Ijab-o-QabooI or procedure adopted in various supermarkets and departmental stores.

  • Buyer and Seller (Muta’aqlain)

Both must be:

  • Sane: ShouId is mentally sound at the time of making a contract.
  • Mature: Should be an adult, However in case of a minor, he must understand the nature of the transaction.

1.3 Conditions of Contract (Shara et-e-Aqd)

1.3.1 Sale must be non-contingent.

The delivery of the sold commodity to the buyer must be certain and should not depend on a contingency or chance For example, ‘A’ sells his stolen car to ‘B’ who purchases it in the hope that the will manage to recover it. The sale is void.

  • Unconditional Contract

The saIe must be unconditional. For example ’A’ buys a car from ’B’ with a condition that ‘B’ will employ his son in his firm. The sale is conditional and hence invalid.

  • Under reasonable conditions

The conditions of sale should not go against the contract for instance, ’A’ tells ’B’ to deliver the goods within a month, the sale is valid.

  • Under unreasonable condition but in market practice

If a sale is an unreasonable condition but is in market practice and not against the teachings of the Quran and sunnah, the sale is valid. For eg. ’A’ buys a refrigerator from ’B’ with a condition that ’B’ undertakes its free service for 2 years. The condition is recognized as a part of the transaction, is valid anal the sale is lawful in Shariah.

  • The sale must be Immediate

The sale must be immediate and absolute. Thus a sale attributed to a future date or a sale contingent on a future event is void. If the parties wish to affect a valid sale, they will have to affect it afresh when the future date comes or the contingent event actually occurs.

For example, ’A’ says to ’B’ on the first of January: “I sell my car to you on the first of February”. The sale is void because It is attributed to a future date. “SimilarIy, If ’A’ says to ’B’: “If X party win’s the elections, my car stands sold to you”, the sale is void because it is contingent on a future event, which may or may not occur However in some specific cases, promise to sell on a future date, may be allowed.

  • Goods for Sale or subject matter (Mabee’)

The following conditions regarding subject mater must be fulfilled:

2.1 Existence

The subject matter of sale must exist at the time of sale. Thus, a thing which has not yet come into existence or which can not be delivered/possessed now cannot be sold. If a non-existent thing has been sold, even with mutual come at, the sale is void according to shari’ah. E.g ’A’ sells the unborn calf of his cow to ‘B’, The safe is void. This rule does not apply in Bai ‘SaIam and Bai Istisna.

2.2 Valuable

The subject at safe must be a property nf value. Thus an If\ind having no value according to the usage of the trade such as a leaf or a stone on a roadside cannot be sold or purchased.

2.3 Usable

The subject of sale should not be a thing which is not used except for a haram purpose, like pork, wine, etc.

2.4 Capable of ownership/title

The subject matter should not be anything, which is not capable of ownership/title, of example, sea or sky.

2.5 Capable of delivery/possession

Sale of anything that due to nonexistence is not capable of being delivered is void. For instance, a chair that is not yet prepared cannot be delivered or possessed since it does not exist.

2.6 Specific and Quantified

The subject matter of sale must be specifically known and identified either by pointing out the asset or by a detailed specification that can distinguish it from other things, which are not sold. For instance, there is a building comprising of a number of apartments built in the same pattern. ’A’, the owner of the building says to ’B’, “I sell one of these apartments to you”; ’B’ accepts the offer. The sale is void unless the apartment intended to be sold is specifically identified or pointed out to the buyer.

2.7 Seller must-have title and risk

The subject matter of sale must be in the ownership of the seller at the time of the sale. Thus that is not owned by the seller cannot be sold. If he sells something before acquiring its ownership and risk, the sale is void. For example, ’A’ sells to ’B’ a car which is presently owned by ’C’ but ’A’ is hopeful that he will buy it from ’C’ and shall deliver it to be ‘B’ subsequently. The sale is void because the car was not owned by ’A’ at the time of sale. The speculation in shares without acquiring ownership and risk is another example.

  • Price (Thaman)

3.1 Quantified (Maloom)

The measuring unit of the price should be known e.g. currency etc.

3.2 Specified and Certain (Muta’aiyan)

For a sale to be valid, the price should be ascertained and specified such as the total amount in rupees, etc. If the price is uncertain, The sale is void. For example, ’A’ says to ’B’. If you pay within a month, the price is Rs.50 but if you pay after two months, the price is Rs. 55’ and B agrees.” The price, in this case, is uncertain, and therefore the sale is void unless anyone of the two alternatives is agreed upon by the parties at the time of sale.

  • Delivery or Possession (Qabza)

The subject of sale must be in the physical or constructive possession of the seller when he sells it to another person.

4.1 Physical (Haqiqi)

For example, ’A’ has purchased a car from ’B’, ’B’ has not yet delivered it to ’A’ or to his agent. Therefore, ‘A’ cannot sell the car to ”C’. If “A” sells it before taking its delivery from ’B’, the sale is void.

4.2 Constructive {Hukmi)

“Constructive possession” means a situation where the possessor has not taken the physical delivery of the commodity, yet the commodity has come into his ownership and all the rights and liabilities of the commodity are passed on to him, including the risk of its destruction. For example, ‘A’ has purchased a car from ’B’, ’B’ after identifying the car has placed it in a garage to which ’A’ has free access and ’B’ has allowed him to take the delivery from that place whenever he wishes. This the risk of the car has passed on to ’A’. The car is in the constructive possession of ‘A’. If ’A” sells the car to ’C’ without acquiring physical possession, the sale is valid.

Written by: Dr. Muhammad Imran Usmani

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