بسم الله الرحمن الرحيم

Kitāb Al-Buyoo’ (Fiqh Al-Muyassar) Lesson 3 Notes (7 Jumada Ath-Thani 1446 H - 8/12/24) Continuation... المسألة الخامسة: شروط البيع Conditions for a Valid Sale BENEFIT: Conditions of the sale (شروط البيع) Vs. Conditions in the sale (شروط في البيع): 1⃣. I(شروط البيع)I are established by the Shari'ah, whereas l(شروط في البيع)l are determined by one of the contracting parties. 2⃣. I(شروط البيع)l are essential for the validity of the sale, while l(شروط في البيع)l are necessary for the enforceability of the sale. A sale is valid even if the conditions in it are not fulfilled, but it is not binding, as the party who set the condition has the option to revoke it if the condition is not met. 3⃣. I(شروط البيع)l cannot be waived, whereas l(شروط في البيع)l can be waived by the party who stipulated them. 4⃣. I(شروط البيع)l are all valid and acceptable because they are established by the Shari'ah, while some l(شروط في البيع)l are valid and acceptable, and others are neither valid nor acceptable. شروط البيع The validity of a sale depends on the following 6 CONDITIONS 1️⃣. التراضي Mutual Consent Between the Seller and Buyer Evidence: Allāh ﷻ says: ﴿یَـٰۤأَیُّهَا ٱلَّذِینَ ءَامَنُوا۟ لَا تَأۡكُلُوۤا۟ أَمۡوَ ٰ⁠لَكُم بَیۡنَكُم بِٱلۡبَـٰطِلِ إِلَّاۤ أَن تَكُونَ تِجَـٰرَةً عَن تَرَاضࣲ مِّنكُمۡ﴾ “O you who believe, do not consume one another’s wealth unjustly, but only [in lawful] business by mutual consent.” [Surah An-Nisāʾ: 29] Similarly, Abu Sa‘eed Al-Khudri (may Allāh be pleased with him) reported that the Prophet ﷺ said: (إِنَّمَا الْبَيْعُ عَنْ تَرَاضٍ)) “A sale is valid only through mutual consent.” [Ibn Majah (2185); graded 'Sahih' by Sheikh Albani] Point of evidence: The restriction (only) indicates that mutual consent is a prerequisite. Furthermore, the default rule regarding the wealth of a Muslim is its sanctity. The Prophet ﷺ said: ((لا يحل مال امرئ مسلم إلا بطيب نفس منه)). [رواه أبو يعلى وغيره، وصححه الألباني في صحيح الجامع (7662)] "The wealth of a Muslim is not permissible to take except with their consent." NOTE: Consent (الرضا) is an internal act of the heart, so there must be some external indication to demonstrate its presence. The external indication is manifested through صيغة العقد, which was one of the pillar discussed in the previous lesson. BENEFIT: The Correlation Between رضا (Consent) and قصد (Intention): 1. ليس قاصدا للفعل ولا النتيجة = كالنائم، والمخطئ، والسكران. Neither intending the act nor its outcome: Examples include the sleeping person, the mistaken individual, and the intoxicated person. 2. قاصد للفعل دون النتيجة = كالمكرَه، والهازل، والممثل. 2. Intending the act but not its outcome: Examples include the coerced, someone who is joking, and someone who is play-acting. 3. قاصد للفعل والنتيجة = هذا هو الراضي! 3. Intending both the act and its outcome: This constitutes رضا (true consent). Thus, a sale is INVALID in the first two cases. However, if coercion is legitimate (الإكراه بحق), such as when a judge compels someone to sell property to settle a debt, the sale is valid. Additionally, cases involving joking, play-acting, or mistakes may require further examination in a court of law. NOTE: Two additional cases mentioned under this condition: 1. بيع المُضطَرّ = Sale of the compelled This refers to the sale made by someone under in a state of necessity, such as financial hardship, to meet urgent needs. While the sale is valid, as long as the seller consents, it is not free from ethical considerations. 2. بيع المُلْجَأ = A sham sale It occurs when two parties agree to conduct a sale contract that appears valid on the surface but is intentionally designed to be invalid or unenforceable. Both the buyer and seller agree beforehand that the transaction is not real. For Example: A person "sells" their property to someone else to protect it from being seized by creditors or authorities, with the understanding that the property will eventually be returned. Since the sale lacks true intent and mutual consent for an actual exchange, it is not a VALID sale.