Article 8:
The ‘Aqd (contract) of Al-Bai’ (sale/trade) requires the following:
1) The accomplishment of the trade.
2) The moving (transferring) of the bought thing to the buyer and the value of the price to the seller upon Ta’beed (permanent/final basis).
3) The freedom of the seller to utilise the value of the price and the buyer in regards to the bought thing.
4) The obligation (Wujoob) of handing over the sale to the purchaser and the value of the price to the seller.
The Shar’a has arranged (ordered) the requirements of the sales contract. It is from the functions of the Shar’a Al-Haneef (pure/rightly guided) and it is the Shar’a that has made necessary actions related to the sales contract and provided the fundamental Ahkaam that relates specifically to it. Therefore the relationship between these Ahkaam, the actions and the sales contract is a Shar’iyah relationship and it is not from the natural relationships that results from things or which the ‘Aql (mind) can be used for to extract Ahkaam (or solutions). It is the Shar’a Al-Haneef that has specified and made certain actions related to the sales contract and it did not allow the seller and buyer or anyone else to dictate these.
As-Suyooti said: [It is that which does not accept (Ta’qeet) a time to be set for it at all and even if it was done it would be invalid: Al-Bai’u (trade) and its types] (Al-Ashbaah Wa-n-Nazhaa’ir 282).
His words in Arabic for reference are:
أن ما لا يقبل التأقيت بحال وحتى إذا أقت بطل: البيع بأنواعها
Article 9:
The original position in regards to the conditions attached to the sales contract is Ibaahah (permissibility) with the exception of the Shart (condition) that violates the Shar’a or is incompatible with the requirements of the ‘Aqd (contract):
As for the Shart that violates the Shar’a then Allah (swt) said:
O you who believe! Fulfil (your) contracts (Al-Maa’idah 1)
So Allah ‘Azza Wa Jalla made the fulfilling of contracts obligatory and this includes the fulfilment of the conditions attached to the sales contract and it has been related from the Messenger of Allah (saw) that he said: “The Muslims are upon their conditions except for the Shart in which the Halaal has been made Haraam and the Haraam made Halaal” (Saheeh At-Tirmidhi). And he (saw) said: “The people are upon their conditions in that which agrees with the Haqq (truth)” (Saheeh At-Tirmidhi).
So the texts are clear in permitting conditions without restriction (‘Alaa Itlaaqihaa/Mutlaqan) except for the Shart that is in opposition to the Kitaab and the Sunnah. As for the prevention of the Shart that violates the requirements of the ‘Aqd (contract) then this is dealt with by the Hadeeth of Burairah recorded by Al-Bukhaari and related by ‘Aa’ishah (ra) who said: “Burairah came to me and said: ''My people (masters) have written the contract for my emancipation for nine ounces (of gold) to be paid in yearly instalments, one ounce per year; so help me.'' 'Aa'ishah (ra) said (to her), ''If your masters agree, I will pay them the whole sum provided the allegiance will be for me.'' Burairah went to her masters and told them about it, but they refused the offer and she refused the offer and she returned from them while Allah's Messenger (saw) was sitting. She said, ''I presented the offer to them, but they refused unless the allegiance would be for them.'' When the Prophet (saw) heard that and 'Aa'ishah told him about it, he (saw) said to her, ''Buy Burairah and stipulate that her allegiance will be for them, as the allegiance is for the slave-freer.'' 'Aa'ishah (ra) did so. After that Allah's Messenger (saw) stood up amidst the people, glorified and praised Allah (swt) and said, ''What is wrong with some people who stipulate things which are not in the Book of Allah? Any condition which is not in the Book of Allah is invalid even if there were a hundred such conditions. The judgment of Allah is the most deserving or has the most right (to be followed) and the condition of Allah is the most solid (binding). The allegiance is for the slave-freer''“ (Al-Bukhaari).
So the Messenger of Allah (saw) explained that the requirements of emancipation (freeing of a slave) is that the loyalty goes to the one who has freed the salve and this re-affirms that the Shar’a has laid down the requirements of the ‘Aqd (contract) and not the ‘Aql (mind) or the natural manner of making transactions. Upon this the Mubaah (permissible) Shuroot (condition) are obliged by their stipulation and this has been indicated by the statement of the Messenger (saw) : “The conditions with the most right to be fulfilled are those which have made sexual relations Halaal” (Al-Bukhaari, Muslim).
So the Hadeeth guides to the obligation of fulfilling all of the Shuroot which the Shuroot of the marriage have obliged so his statement: ‘Ahaqqu’ (More right/deserved) is in the Seeghah (Form) of Tafdeel (Superlative) which means that the Shuroot in other than the marriage are also obligatory however the most obligatory are those of marriage (and sexual relations). ‘Umar (ra) said: “Muqaati’ Al-Huqooq ‘inda sh-Shuroot/ The cutter (breaker) of rights by the conditions”. This is an Athar recorded by Al-Bukhaari Mu’allaqan and Ibn Hajar commented on it in his Fath-ul-Baari saying: [It reached Ibn Abi Shaibah and Sa’eed Ibn Mansoor] (Fath-ul-Baaru 323/5) and Al-Bukhaari related Mu’allaqan in a decisive form from Shuraih that he said: “Whoever stipulates a condition upon himself in an act of obedience that he has not been compelled with, then it is upon him (to fulfil it)”.
Article 10:
The Shart that is Mukhaalif (contravenes) the Shar’a within the sales contract makes the ‘Aqd (contract) Baatil (invalid) and the Shart that is Munaafi (contrary) to the Muqtadaa (requirement) of the ‘Aqd is considered null and void whilst the contract (itself) is Saheeh.
The Daleel for this is the Qawl of the Messenger (saw): “The Muslims are upon their conditions (Shuroot) except a Shart that makes the Halaal Haraam and the Haraam Halaal”.
The Shart that goes against (Mukhaalif to) the Shar’a makes the continuation in the contract Muharram due to the attachment of Haraam to it and as such it is necessary to cease continuing upon the invalidity of the contract.
As for cancelling a Shart that is contrary to the requirement of the ‘Aqd then its Daleel is the Hadeeth of Burairah where the Messenger of Allah (saw) cancelled the Shart that was contrary to the requirement of the ‘Aqd and the ‘Aqd remained Saheeh (valid) because the loyalty is obligated by the mere manumission of the slave. Therefore everything that the contract makes a requirement is obligated merely by the ‘Aqd (contract) (itself).
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