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Fiqh of Trade - Part 2 (The Majlis & Conditions of the buyer/seller)

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The following is a translation from the Arabic book 'Mashroo’ Qaanoon Al-Buyoo’ Fee Dawlah Al-Islaamiyah', first edition by Ziyaad Ghazlaan.


Article 4:

The Majlis (sitting) of the ‘Aqd of Al-Bai’ (contract of trade) is the circumstances (Haal) in which the Baa’i (seller) and Mushtari (purchaser) are actively engaged in the Bai’ (trade).

 

This means the time in which the seller and buyer are engaged in the process of trade and its reality has been explained by Ash-Sheikh Mustafaa Az-Zarqaa when he stated: [The state in which the two contracting parties are engaging in negotiations about the contract] (Al-Madkhal Al-Fiqhi Al-‘Aamm 348/1).

So the Majlis of the ‘Aqd extends throughout the period of time that is after the Eejaab (offer) as long as this period does not include that which indicates opposition from either the seller or buyer.

And the evidence for this is the speech of Allah (swt):

Unless it is a trade by mutual consent between you. (An-Nisaa 29)

And his (saw) statement: “Indeed trade is only by Taraadin (Mutual consent” (Saheeh Ibn Maajah/Ash-Sheikh Al-Albaani). So the purpose of the Majlis Al-’Aqd is to fulfil the requirements of the Taraadin (mutual consent) within the trade so the state (circumstance) in which the Taraadin between them is achieved is the Majlis Al-‘Aqd.

 

Article 5:

Al-‘Aql (mental capacity) and Ar-Rushd (sound judgment) are stipulated conditions for the buyer and seller.

 

‘Aql is stipulated due to his (saw) statement: “The pen is lifted from three; the sleeping until he awakes, the boy until he reaches maturity and the Majnoon (lacking mental capacity) until he regains his ‘Aql (mental capacity)” (Saheeh Abu Daawood). So the Shar’a has taken away their statements and actions due to the absence of judgment upon them as understood from the meaning of his statement: “The pen has been lifted”. Similarly the trade has stipulated Ridaa (acceptance/consent) and the Majnoon does not possess this capability.

Ar-Raashid (Al-Qamoos Al-Muheet) is the one who has mastered the ability to evaluate (yuhsin at-Taqdeer) and see (distinguish) what is true (yuseeb Al-Haqq).

And the evidence for the stipulation of the condition of Ar-Rushd is the statement of Allah (swt):

And test the orphans (as regards their intelligence/abilities) until they reach the age of marriage. Then if you find sound judgement in them, release their property to them (An-Nisaa 6).

So Allah Ta’Aalaa stipulated Ar-Rushd so that their property would be paid to them so that they can take charge of handling it and so that the Wilaayah (guardianship) be removed (lifted) from them.

 

Article 6:

The selling and buying of the Mumayyiz (distinguishing) Sabi (child under age of puberty) is valid (Saheeh) if his Wali (guardian) has permitted it.

 

The evidence for this is the statement of Allah (swt):

And test the orphans (as regards their intelligence/abilities) (An-Nisaa 6).

This means that they are tested (examined) and the testing occurs through the practice of the selling and buying. Therefore this is a command to the Wali to permit the Sabi (boy) to practice selling and buying so that he is tried and tested. Ibn Qudaamah says: [The statement of Allah (swt): ((And test the orphans (as regards their intelligence/abilities) until they reach the age of marriage. Then if you find sound judgement in them, release their property to them)) means to test them so as to teach them their Rushd and this test can only be accomplished by delegating to them the handling of the selling and buying so as to known whether or not he is being deceived because the ‘Aaqil (one with full mental capacity) is not Mahjoor (a minor under charge/guardianship) and as such his taking charge of handling it is valid and is most likely (yahtamil) to be correct, and this rests upon the permission of the Wali] (Al-Mughni 168/4).

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