A sale; commercial dealing; barter. Bai’, or “sale”, in the language of the law, signifies an exchange of property wtih the mutual consent of parties. For the rules concerning sales and barter, see Hamilton’s Hidayah, vol. ii 360; Baillie’s Muslim Law of Sale; The Fatawa ‘Alamgiri.
Sale, in its ordinary acceptation, is a transfer of property in consideration of a price in money. The word has a more comprehensive meaning in the Muslim law, and is applied to every exchange of property for property with mutual consent. It, therefore, includes barter as well as sale, and also loan, when the articles lent are intended to be consumed, and replaced to the lender by a similar quantity of the same kind. This transaction, which is tru1y an exchange of property for property, is termed qarz in the Muslim law.
Between barter and sale there is no essential distinction in most systems of law, and the joint subject may in general be considerably simplified by being treated of solely as a sale. A course has been adopted in the Muslim law, which obliges the reader to fix his attention on both sides of the contract. This may at first appear to him to be an unnecessary complication of the subject but when he becomes acquainted with the definition of price, and the rules for the prohibition of excess in the exchange of a large class of commodities, which apply to every form of the contract, he will probably be of opinion that to treat of the subject in any other way would be attended with at least equal difficulties.
The first point which seems to require his attention is the meaning of the word “property” as it occurs in the definition of sale. The original term (mal), which has been thus translated, as defined by Muslim lawyers; “to that which can be taken possession of and secured.” This definition seems to imply that it is tangible or corporeal, and things or substances are accordingly the proper subjects of sale. Mere rights are not mal, and cannot therefore be lawfully sold apart from the corporeal things which they may happen to be connected. Of such rights one of the most important is the right of a creditor to exact payment of a debt, which is not a proper subject of sale. In other words, debts cannot, by the Muslim law, any more than by the common laws of England and Scotland, be lawfully sold.
Things are commonly divided into moveable and immoveable, the latter comprehending land and things permanently attached to it. But the distinction is not of much importance in the Muhammad law, as the transfer of land is in nowise distinguished from that of other kinds of property.
A more important division of things is that into misli and kamni. The former are things which, when they happen to perish are to be replaced by an equal quantity of something similar to them; and the latter are things which, in the same circumstances are to be replaced by their value. These two classes have been aptly styled “similars” and “dissimilars”, by Mr. Hamilton, in his translation of theHidayah. Similars are things which are usually sold or exchanged by weight or by measurement of capacity, that is, by dry or liquid measure; and dissimilars are things which are not sold or exchanged in either of these ways. Articles which are nearly alike, and are commonly sold or exchanged by number or tale, are classed with the first division of things, and may be termed “similars of tale” while articles which differ materially from each other, yet are still unusually sold or exchanged by number, belong to the second division, and may be called “dissimiliars of tale.” Dirhams and dinars, the only coined money known to the old Arabs, are included among similars of weight.
Similars of weight and capacity are distinguished in the Muslim law from all other descriptions of property in a very remarkable way. When one article of weight is sold or exchanged for another article of weight, or one of measure in sold or exchanged for another of measure, the delivery of both must be immediate from hand to hand, and any delay of delivery in one of them it unlawful and prohibited. Where, again, the articles exchanged are also of the same kind, as when wheat in sold for wheat, or silver for silver, there must not only be reciprocal and immediate delivery of both before the separation of the parties, but also absolute equality of weight or measure, according as the articles are weighable or measurable, and any excess on either side is also unlawful and prohibited. These two prohibitions constitute in brief the doctrine of reba or “usury,” which is a marked characteristic of the Muslim law of sale. The word reba properly signifies “excess” and there are no terms in the Muslim law which corresponds to the words “interest”, or “usury”, in the sense attached to them in the English language; but it was expressly prohibited by Muhammad to his followers to derive any advantage from loans, and that particular kind of advantage which in called by us interest, and consists in the receiving back from the borrower a larger quantity than was actually lent to him, was effectually prevented by the two rules above-mentioned. Those like some other principles of Muslim law, are applied with a rigour and minuteness that may to us seem incommensurate with their importance, but are easily accounted for when we know that they are believed to be of divine origin.
Similars of weight and capacity have a common feature of resemblance, which distinguishes them in their own nature from other commodities, and marks with further peculiarity their treatment in the Muslim law. They are aggregates of minute parts, which are either exactly alike, or so nearly resemble each other, that the difference between them may be safely disregarded. For this reason they are usually dealt with in bulk regard being had only to the whole of a stipulated quantity, and not to the individual parts of which it is composed. When sold in this manner they are said to be indeterminate. They may, however, be rendered specific in several ways. Actual delivery or production with distinct reference at the time of contract, seems to be sufficient for that purpose in all cases. But something short of this would suffice for all similars but money. Thus, flour, or any kind of grain, may be rendered specific by being enclosed in a sack; or oil, or any liquid, by being put into casks or jars; and though the vessels are not actually produced at the time of contract, their contents may be sufficiently particularised by description of the vessels and their locality. Money is not susceptible of being thus particularised and dirhams and dinars are frequently referred to in the following pages as things which cannot be rendered specific by description, or specification, as it is more literally termed. Hence, money is said to be always indeterminate. Other similars, including similars of tale, are sometimes specific and sometimes indeterminate Dissimilars, including those of tales are always specific.
When similars are sold indeterminately, the purchaser has no right to any specific portion of them until it be separated from a general mass, and marked or identified as the subject of the contract. From the moment of offer till actual delivery, he has nothing to rely upon but the seller’s obligation, which may, therefore, be considered the direct subject of the contract. Similars taken indeterminately are accordingly termed dayn, or “obligations,” in the Muslim law. When taken specifically, they are classed with dissimilars, under the general name of dayn The literal meaning of this term is “substance or thing”; but when opposed to dayn it means something determinate or specific. The subject of traffic may thus be divided into two classes, specific and indeterminate or, if we substitute for the latter the word “obligation,” and omit the word “specific” as unnecessary when not opposed to “indeterminate,” these classes may, according to the view of Muslim lawyers, be described as things and obligations.
There is some degree of presumption in using
a word in any other than its ordinary acceptation, and it is not without hesitation that (Mr. Baillie says) I have ventured to employ the word “obligation” to signify indeterminate things. My reasons for doing so are these: first it expresses the exact meaning of the Arabic word dayn, and yet distinguishes this use of it from another sense, in which it is also employed in the Muslim law, second, it preserves consistency in the law. Thus, it will be found hereafter that the effect of sale is said to be to induce a right in the buyer to the thing sold, and in the seller to the price, and that this effect follows the contract immediately before reciprocal possession by the contracting parties. Now, it is obvious that this is impossible with regard to things that are indeterminate, if the things themselves are considered the subject of the contract, and cases are mentioned where it is expressly stated that there is no transfer of property to the purchaser, when similars of weight of capacity are sold without being distinctly specified, until actual possession take place. The difficulty disappears if we consider not the thing itself but the obligation to render it to be the subject of contract; for a right to the obligation passes immediately to the purchaser, and the seller may be compelled to perform it. If we flow resort to the division of things into similars and dissimiliars, money – which, it has been remarked, is always indeterminate – is therefore an obligation; dissimilars, which are always specific, are never obligations: and other similars, except money, being sometimes specific and sometimes indeterminate, are at one time obligations, and at anther time things or substances.
Before proceeding farther it is necessary to advert more particularly to the other sense in which the word dayn is frequently employed in the Muslim law. It means strictly “obligation” as already observed; but the obligation may be either that of the contracting party himself, or of another. In the former sense dayn is not only a proper subject of traffic, but forms the sole subject of one important kind of sale, hereafter to be noticed. But when dayn is used to signify the obligation of another than the contracting party, it is not a proper subject of traffic and, as already observed, cannot be lawfully sold. In the following pages, dayn has been always translated by the word “debt” when it signifies the obligation of a third party, and generally by the word “obligation”, when it signifies the engagement of the contracting party himself, though when the things represented by the obligation are more prominently brought forward, it has sometimes been found necessary to substitute the expression, “indeterminate things.”
Though barter and sale for a price are considered under one general name in the Muslim law, it is sometimes necessary to consider one of the things exchanged as more strictly the subject of sale, or thing sold, and the other as the price. In this view the former is termed mabi’ and the latter Saman. Saman of “price,” is defined to be dayn fi zimmah, or, literally, an “obligation in responsibility.” From which, unless the expression is a mere pleonasm, it would appear that the word dayn is sometimes used abstractly, and in a sense distinct from the idea of liability. That idea, however, is necessary to constitute price; for though cloth, when properly described, may, by reason of its divisibility and the similarity of its parts, be sometimes assumed to perform the function of price in a contract of sale, it is only when it is not immediately delivered, but is to remain for some time on the responsibility of the contracting party, that it can be adopted for that purpose.
It is a general principle of the Muslim law of sale, founded on a declaration of the Prophet, that credit cannot be opposed to credit, that is, that both the things exchanged cannot be allowed to remain on the responsibility of the parties. Hence, it is only with regard to one of them that any stipulation for delay in its delivery is lawful. Price, from its definition above given, admits of being left on responsibility, and accordingly a stipulation for delay in the payment of the price is quite lawful and valid. It follows that a stipulation for delay in the delivery of the things sold cannot be lawful. And this is the case, with the exception of one particular kind of sale, hereafter to be noticed, in which the thing sold is always indeterminate, and the price is paid in advance. It may, therefore, be said of all specific things when the subject of sale, that a stipulation for delay in their delivery is illegal, and would invalidate a sale. The object of this rule may have been to prevent any change of the thing sold before delivery, and the disputes which might in consequence arise between the parties. But if they were allowed to select whichever they pleased of the articles exchanged to stand for the price, and the other for the thing sold, without any regard to their qualities, the object of the last-mentioned rule, whatever it may have been, might be defeated. This seems to have led to another arrangement of things into different classes, according to their capacities for supporting the functions of price or of the thing sold in a contract of sale. The first class comprehends dirhams and dinars, which are always price. The second class comprises the whole division of dissimilars (with the single exception of cloth) which are always the thing sold, or subject of sale, in a contract. The third class comprises, first, all similars of capacity; second, all similars, of weight except, dirhams and dinars; and, third all similars of tale. The whole of this class is capable of supporting both functions, and is sometimes the thing sold, and sometimes the price. The fourth class comprises cloth and the copper coin called fulus.
Sale implies a reciprocal vesting of the price in the seller and of the thing and in the purchaser. This, as already remarked, is called its legal effect, and sale may be divided into different stages or degrees of completeness, according as this effect is immediate, suspended, invalid, or obligatory. Thus, sale must first of all be duly constituted or contracted. After that, there may still be some bar to its operation, which occasions a suspension of its effect. This generally arises from a defect of power in the seller, who may not be fully competent to act for himself, or may have insufficient authority, or no authority whatever, over the subject of sale. In this class of sales the effect is dependent on the assent or ratification of some other person than the party actually contracting, But whether the effect of a sale be immediate or suspended there may be some taint of illegality in the mode of constituting it, or in its subject, or there may be other circumstances connected with it, which render it invalid. The causes of illegality are many and various. But even though a sale should be unimpeachable on the previous grounds, that is, though it should be duly constituted, operative or immediate in its effect, and free from any ground of illegality, still it may not be absolutely binding on the parties. This brings us to another remarkable peculiarity of the Muslim law, viz. the doctrine of option, or right of cancellation. The Prophet himself recommended one of his followers to reserve a locus paritentioe, or option, for three days in all his purchases. This has led to the option by stipulation, which may be reserved by either of the parties. But besides this, the purchaser has an option without any stipulation, with regard to things which he has purchased without seeing, and also on account of defects in the thing sold. The greatest of all defects is a want of title or right in the seller. The two last options to the purchase constitute a complete warranty of title and against all defects en the part of the seller, in which respect the Muslim more nearly resembles the Scotch than the English law of sale.
There are many different kinds of sale. Twenty or more have been enumerated in th Nihayah, of which eight are mentioned and explained. Four of these, which have reference to the thing sold, may require some notice in this place. The first, called Muqayazah, is described as a sale of things for things, and corresponds nearly with barter; but the word “thing” (‘ayn) is here opposed to obligations, and muqayazrah is therefore properly an exchange of specific for specific things, so that if the goods exchanged were on both sides or on either side indeterminate, the transaction would not, I think, be a muqayazah, though still barter. The second sale is called sarf, and is defined to be an exchange of obligations for obligations. The objects of this contract are dirhams and dinars which being obligations, the definition is generally correct. But an exchange of money for bullion, or bullion for bullion, is also a sarf, and every sale of an obligation for an obligation is not a sarf, so that the definition is redundant as well as defective. It is essential to the legality of this kind of sale, that both the things exchanged should be delivered and taken possession of before the separation of the parties and that when they are of the same kind, as silver for silver, or gold for gold, they should also be exactly equal by weight. These rules are necessary for the avoidance of reba, or “usury,” as already explained; and the whole of sarf which is treated of at a length quite disproportionate to its importance, may be considered as a continued illustration of the doctrine of reba. The third kind of sale is salam. It has been already observed that there can be no lawful stipulation for a postponement of the delivery of the thing sold, except under one particular form or sale. The form alluded to is salam. This word means, literally, “an advance”; and in salam sale the price is immediately advanced for the goods to be delivered at a future fixed time. It is only things of the class of similars that can be sold in this way and as they must necessarily be indeterminate, the proper subject of sale is an obligation; while, on the other hand, as the price must be actually paid or delivered at the time of the contract, before the separation of the parties, and must, therefore, even in the case of its being money, be produced, and in consequence be particularised or specific, a salam sale is strictly and properly the sale of an obligation for a thing, as defined above. Until actual payment or delivery of the price, however, it retains its character of an obligation, and for this reason the price and the goods are both termed “debts,” and are adduced in the same chapter as examples of the principle that the sale of a debt, that is, of the money or goods which a person is under engagement to pay or deliver, before possession, is invalid. The last of the sales referred to is the ordinary exchange of goods for money, which being an obligation, the transaction is defined to be the sale of things for obligations.
There is another transaction which comes within the definition of sale, and has been already noticed, but may be further adverted to in this place. It is that which is called Qarz in the Arabic, and “loan” in the English language. The borrower acquires an absolute right of property in the things lent, and comes under an engagement to return an equal quantity of things of the same kind. The transaction is therefore necessarily limited to similars, whether of weight, capacity, or tale, and the things lent and repaid being of the same kind, the two rules already mentioned for the prevention of reba, or “usury,” must be strictly observed. Hence it follows that any stipulation on the part of the borrower for delay or forbearance by the lender, or any stipulation by the lender for interest to be paid by the borrower are alike unlawful.
Notwithstanding the stringency of the rules for preventing usury, or the taking any interest on the loan of money, methods were found for evading them and still keeping within the letter of the law. It had always been considered lawful to take a pledge to secure the repayment bf a debt. Pledges were ordinarily of movable property; when given as security for a debt, and the pledge happened to perish in the hands of the pawnee, the debt was held to be released to the extent of the value of the pledge. Land, though scarcely liable to this incident, was sometimes made the subject of pledge, and devices were adopted for enabling the lender to derive some advantage from its possession while in the state or pledge. But the moderate advantage to be derived in this way does not seem to have contented the money-lenders, who in all ages and countries have been of a grasping disposition, and the expedient of a sale with a condition for redemption was adopted, which very closely resembles an English mortgage. In the latter, the condition is usually expressed in one of two ways, viz. either that the sale shall become void, or that the lender shall resell to the seller, on payment of principal and interest at an assigned term. The first of these forms would be inconsistent with the nature of sale under the Muslim law, but a sale with a covenant by the lender to reconvey to the seller on repayment of the loan seems to have been in use probably long before the norm was adopted in Europe. It is probable that a term was fixed within which the repayment should be made. If repayment were made at the assigned term, the lender was obliged to reconvey; but if not, the property would remain his own, and the difference between its value and the price or sum lent might have been made an ample compensation for the loss of interest. This form of sale, which was called Bai’u ‘l-wafa; seems to have been strictly legal according to the most approved authorities, though held to be what the law calls abominable, as a device for obtaining what it prohibits.
In constituting sale there is no material difference between the Muslim and other systems of law. The offer and acceptance, which are expressed or implied in all cases, must he so connected as to obviate any doubt of the one being intended to apply to the other. For this purpose the Muslim law requires that both shall he interchanged at the same meeting of the parties, and that no other business shall be suffered to intervene between an offer and its acceptance. A very slight interruption is sufficient to break the continuity of a negotiation, and to terminate the meeting in a technical sense, though the parties should still remain in personal communication. An acceptance after the interruption of an offer made before it would be insufficient to constitute a sale. This has led to distinctions of the meeting which may appear unnecessarily minute to a reader unacquainted with the manners of Eastern countries, where the people are often very dilatory in their bargains, interspersing them with conversation on indifferent topics. It is only when a meeting has reference to the set of contracting that its meaning is thus liable to be restricted; for when the word occurs in either parts of the law, as, for instance, when it is said of a sarf contract that the things exchanged must be taken possession of at the meeting, the whole period that the parties may remain together is to be understood. As personal communication may be inconvenient in some cases, and impossible in others, the integrity of the meeting is held to be sufficiently preserved when a party who receives an offer by message or letter declares his acceptance of it on receiving the communication and apprehending its contents.
When a sale is lawfully contracted, the property in the things exchanged passes immediately from and to the parties respectively. In a legal sale, delivery and possession are not necessary for this purpose. Until possession is taken, however, the purchaser is not liable for accidental loss, and the seller has a lien for the price on the thing sold. Delivery by one party is in general tantamount to possession taken by the other. It is, therefore, sometimes of great importance to ascertain when there is a sufficient delivery; and many cases, real or imaginary, on the subject, are inserted in the Fatawa ‘Alamqiru. It sometimes happens that a person purchases a thing of which he is already in possession, and it then becomes important to determine in what cases his previous possession is convertible into a possession under the purchase. Unless so converted, it would he held that there is no delivery under the sale, and the seller would of course retain his lien and remain liable for accidental loss.
Though possession is not necessary to complete the transfer of property under a legal sale, the case is different where the contract is illegal; for here property does not pass till possession is taken. The sale, however, though so far effected, is still invalid, and liable to be set aside by a judge, at the instance of either of the parties, without any reference to the fact of the person complaining being able to come before him with what in legal phraseology is termed clean hands. A Muslim judge is obliged by his law to interfere for the sake of the law itself, or, as it is more solemnly termed, for the right of God, which it is the duty of the judge to vindicate, though by so doing he may afford assistance to a party who personally may have no just claim to his interference. (The Muslim Law of Sale, according to Haneefe Code, from the Fatawa Alamgiri, by Neil B.E. Baille. Smith, Elder & Co., London)
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