item. The Muslim faqihs (jurists) define the salam as: "A contract
according to which the price of a clearly defined item is paid in
advance atthe place of concluding the contract, and the sold item is
to be received later."
This kind of transactions is permissible according to the Quran, the
Sunnah (Prophetic Tradition) and the consensus of Muslim scholars.
What proves that is what Allaah, The Exalted, Says (what means): {O
you who have believed, when you contracta debt for a specified term,
write it down...} [(Quran 2: 282]
Ibn 'Abbaas says: "I testify that Allaah has made lawful to
us(Muslims) to pay in advance for the price of a thing to be delivered
later after a specified term. He then recited this above-mentioned
verse."1
When the Prophet arrived at Madeenah and found its people paying in
advance the price of fruits to be delivered later after a year, two or
three, he said: "Whoever pays in advance the price of a thing - (or
"...of fruits..." according to another narration) - to be delivered
later should pay it for a specified measure at specified weight for
aspecified period." [Al-Bukhaari and Muslim]
This Hadeeth proves that the salam is permissible when these
conditions are fulfilled. Besides, Ibnul-Munthir and other scholars
report that scholars uniformly agree that the salam is permissible3.
Moreover, people need the salam, since one of the parties of the
transaction may be in need for being paid the price of an item in
advance while the other may be in need for buying an item for a cheap
price.
In addition to the conditions of selling, there are some conditions
necessary for validating the salam:
First: The sold item whose price isto be paid in advance must have
definite properties. This is because items whose properties cannot be
defined undergo many changes, which causes disputes between the two
parties of the sale (at the time of receiving the sold item).
Thereupon, the salam is not valid in items whose properties may
change, such as pulses, leather, utensils and jewels.
Second: The kind and the class of the sold item must be defined. For
example, if the sold item is wheat, the kind must be defined, which is
wheat here, and the class of that wheat must be defined such as
As-salamuni (a type of wheat).
Third: The sold item must be a specified quantity, weight or measure.
This is according to the meaning of the Hadeeth in which the Prophet
says: "Whoever pays in advance the price of a thing to be delivered
later shouldpay it for a specified measure or aspecified weight and
for a specified period." [Al-Bukhaari and Muslim]
Besides, if the quantity of the sold item is unspecified, it becomes
difficult to be exact.
Fourth: There must be a specified period for receiving the sold item.
This is because the Prophet says in the above-mentioned Hadeeth,
"...for a specified period." Besides, Allaah, Exalted be He, says
(what means): {O you who have believed, when you contract a debt for a
specified term, write it down...} [Quran 2: 282]
With regard to this issue, both the Hadeeth and the noble verse state
that in the salam both parties agree to the condition stating that the
sold item is to bedelivered later according to a specified period
known to both of them.
Fifth: The item sold must be present when the time of reception is
due, in order to be delivered at the stipulated time. Thereby, if that
item is not available when its time of delivery is due, the salam does
not become valid, such as paying the price of ripe dates and grapesin
advance and stipulating that the sold item be delivered in winter,
(such crops are not available at such a time).
Sixth: The price of the sold item must be paid fully in advance at the
time of concluding the contract. This is according to the Hadeeth in
which the Prophet ( ) says: "Whoever pays in advance the price of a
thing to bedelivered later should pay it for a specified measure..."
In this connection, Imaam Ash-Shaafi'i said: "The transaction of the
salam is not valid, except when the price is paid in advance and
before the two parties (the seller and the buyer) leave the place
where theyhave concluded the transaction. Besides, if the price of the
sold item is not paid at the time of concluding the contract, it will
beregarded as selling a debt for a debt, which is impermissible."
Seventh: The sold item is not to be specific (e.g. a certain house or
a specified tree). Rather, it should be regarded as a debt in the
seller's liability. Thereby, the salam is not valid when specifying a
certain house or a certain tree to be given, because this tree or
house may get damaged before being delivered to the buyer. In this
way, the desired purpose for which the salam has been decreed will not
be fulfilled.
Besides, the delivery of the sold item is to be in the same place
where the contract of the salam has been concluded, if possible.
Ifthis place is not fit for delivery (e.g. they concluded the contract
at a certain spot on land or at sea), then the place of delivery must
be mentioned in the contract. Moreover, if the two parties agree on
the place of delivery, the salam becomes permissible. Otherwise, they
must resort to the place where the contract has been concluded, for it
was fit for concluding the transaction from the start, as mentioned
before.
One of the rulings on the salam isthat it is impermissible to sell
theitem sold according to the salam to someone else (by the buyer)
before it is received. This is because the Prophet ( ) forbade selling
foodstuffs before receiving them4. In this case, the hawalah5 is
invalid, since the hawalah is only valid regarding a stable debt while
the salam can then be annulled.
Another ruling on the salam is that if the sold item is not present or
available at the due time, such as in cases when the trees have not
born fruits at the year of delivery, the one who has paid for the item
in advance may choose whether to wait until the fruits are available,
or he may askfor annulling the contract and ask for the money he has
paid. This is because in case the contract is annulled, it is
obligatory for the seller to repay the price paid in advance. If the
payment given by the buyer against the sold item is damaged, a
compensation for it must be paid. And Allaah, Exalted be He, knows
best.
In fact, allowing such a kind of transactions is a sign of the
facilitation and benevolence by which our Sharee'ah is characterized.
This is because thesalam facilitates many things for people and helps
them do what benefits them. Besides, the salamdoes not involve ribaa'
or the like of other forbidden transactions. All praise is due to
Allaah for the facilitation He grants.
Endnotes
1. Al-Hakim (3189) [2/342], Al-Bayhaqi (11081) [6/30] and 'Abur-Razzaq
(14064) [8/5].
2. Al-Bukhaari (2239) [4/540] and Muslim (4094) [6/42]. See also
Al-Bukhari (2253) [4/457].
3. See: "Al-Ijma ' " [p. 54]
4. Ahmad (15253) [3/402] and An-Nasaa'i (4610) [7/329].
5. Hawalah: The transference of a debt from the liability of the
debtor to the liability of another
No comments:
Post a Comment