بسم الله الرحمن الرحيم

The Ruling on ʿArbūn (Earnest Money) in Sales Transactions Question: The questioner asks about the sale involving a down payment (ʿarbūn)... Sheikh comments: The ʿArbūn is well known; Al-ʿurbūn, Al-ʿArabūn, and Al-ʿUrbān are all acceptable linguistic forms. Question continues: A person wishes to purchase something and pays a sum of money as a deposit, with a stipulated period of time. If he does not pay the remaining amount and take the item for which he paid the deposit, then the amount he has paid will be forfeited. Sheikh Najeeb Ash-Shar’abi: Yes—the ʿArbūn is when the one who intends to buy a commodity gives its owner a sum of money; if the sale is completed, this amount is counted toward the price of the item, and if the sale is not completed, then this amount belongs to the owner of the item from whom the sale was requested. The scholars have differed on the permissibility of the ʿarbūn sale: is it lawful for the seller to take it when the buyer withdraws from the purchase, retracts, or the contract is not concluded? There is no doubt that this usually causes harm to the owner of the item, or at least in some cases. Thus, taking this money is in return for reserving or holding the item, because he may incur loss. For example, the owner of a carpentry workshop does not prepare doors without a deposit, because if the one who ordered the doors withdraws and does not commit to the contract, this will cause a loss to the workshop owner. The workshop owner will certainly lose, because he will not be able to sell the doors he prepared at the same price; selling them ready-made without a specific order is at a lower price than preparing them according to a custom order. This is well known. The same applies to windows, frames, and iron doors with iron workshops. The majority of the scholars prohibit the ʿarbūn sale—among them the Hanafis, Malikis, and Shafi‘is. They cited a hadith in which the Prophet ﷺ forbade the sale of Al-ʿurban (i.e., ʿArbūn). However, the hadith is weak and not authentic; its chain of transmission is weak. The position of Ahmad (may Allāh have mercy on him) is that the ʿArbūn sale is permissible, and this is the correct view, as it suits people’s needs, prevents harm, and contains no legal prohibition. However, it is conditional upon there being an agreement between the seller and the buyer—between both parties—or that this matter be something well known and customary, even without an explicit condition. For example, it is known among people that one who orders doors from an iron, carpentry, or wood workshop pays an amount of money, and that this amount becomes the property of the workshop owner if the customer fails to uphold the sale contract. [The Prophet ﷺ said] "Muslims are bound by their conditions unless a condition makes lawful what is unlawful or makes unlawful what is lawful." This condition neither prohibits a lawful matter nor permits an unlawful one; rather, it achieves a benefit and wards off harm. The Shari'ah came to realise benefits and prevent harms, as is well known. This is one of the major juristic maxims agreed upon. The poet said, summarising the five established maxims of the Shafi‘i school—though in reality, they are not exclusive to his school: Harm shall be removed, and custom shall be given legal weight; Hardship brings about ease; Certainty is not removed by doubt; And intentions secure reward if sincerity is sought. The Prophet ﷺ said: “There is no harming and no reciprocating harm.” This hadith was cited by Imam An-Nawawī in his Forty Hadith, wherein he committed to including only those hadiths that constitute foundational principles of the religion. If there is neither an explicit agreement nor a recognised custom, and the seller incurs harm because the prospective buyer failed to complete the sale—such as reserving the item at a time when he could have found another buyer—then if the original buyer later withdraws, resulting in the seller missing the opportunity to sell, this constitutes harm.