Business Transactions

Malik related to me that he asked Ibn Shihab about a man whohired an animal, and then re-hired it out for more than what he hiredit for. He said, "There is no harm in that."

Yahya related to me from Malik from a reliable source from Amribn Shuayb from his father from his father's father that the Messengerof Allah, may Allah bless him and grant him peace, forbadetransactions in which nonrefundable deposits were paid.

Maliksaid, "That is, in our opinion, but Allah knows best, that forinstance, a man buys a slave or slave-girl or rents an animal and thensays to the person from whom he bought the slave or leased the animal,'I will give you a dinar or a dirham or whatever on the condition thatif I actually take the goods or ride what I have rented from you, thenwhat I have given you already goes towards payment of the goods orhire of the animal. If I do not purchase the goods or hire the animal,then what I have given you is yours without liability on your part.' "

Malik said, "According to the way of doing things with usthere is nothing wrong in bartering an arabic speaking merchant slavefor abyssinian slaves or any other type that are not his equal ineloquence, trading, shrewdness, and know-how. There is nothing wrongin bartering one slave like this for two or more other slaves with astated delay in the terms if he is clearly different. If there is noappreciable difference between the slaves, two should not be barteredfor one with a stated delay in the terms even if their racial type isdifferent."

Malik said, "There is nothing wrong in sellingwhat has been bought in such a transaction before taking possession ofall of it as long as you receive the price for it from some one otherthan the original owner."

Malik said, "An addition to theprice must not be made for a foetus in the womb of its mother when sheis sold because that is gharar (an uncertain transaction). It is notknown whether the child will be male or female, good-looking or ugly,normal or handicapped, alive or dead. All these things will affect theprice."

Malik said that in a transaction where a slave orslave-girl was bought for one hundred dinars with a stated creditperiod that if the seller regretted the sale there was nothing wrongin him asking the buyer to revoke it for ten dinars which he would payhim immediately or after a period and he would forgo his right to thehundred dinars which he was owed.

Malik said, "However, ifthe buyer regrets and asks the seller to revoke the sale of a slave orslave-girl in consideration of which he will pay an extra ten dinarsimmediately or on credit terms, extended beyond the original term,that should not be done. It is disapproved of because it is as if, forinstance, the seller is buying the one hundred dinars which is not yetdue on a year's credit term before the year expires for a slave-girland ten dinars to be paid immediately or on credit term longer thanthe year. This falls into the category of selling gold for gold whendelayed terms enter into it."

Malik said that it was notproper for a man to sell a slave-girl to another man for one hundreddinars on credit and then to buy her back for more than the originalprice or on a credit term longer than the original term for which hesold her. To understand why that was disapproved of in that case, theexample of a man who sold a slave-girl on credit and then bought herback on a credit term longer than the original term was looked at. Hemight have sold her for thirty dinars with a month to pay and then buyher back for sixty dinars with a year or half a year to pay. Theoutcome would only be that his goods would have returned to him justlike they were and the other party would have given him thirty dinarson a month's credit against sixty dinars on a year or half a year'scredit. That was not to be done.

Yahya related to me from Malik from Nafi from Abdullah ibn Umarthat Umar ibn al-Khattab said, "If a slave who has wealth is sold,that wealth belongs to the seller unless the buyer stipulates itsinclusion."

Malik said, "The generally agreed upon way ofdoing things among us is that if the buyer stipulates the inclusion ofthe slave's property whether it be cash, debts, or goods of known orunknown value, then they belong to the buyer, even if the slavepossesses more than that for which he was purchased, whether he wasbought for cash, as payment for a debt, or in exchange for goods. Thisis possible because a master is not asked to pay zakat on his slave'sproperty. If a slave has a slave-girl, it is halal for him to haveintercourse with her by his right of possession. If a slave is freedor put under contract (kitaba) to purchase his freedom, then hisproperty goes with him. If he becomes bankrupt, his creditors take hisproperty and his master is not liable for any of his debts."

Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnMuhammad ibn Amr ibn Hazm that Aban ibn Uthman and Hisham ibn Ismailused to mention in their khutbas built-in liability agreements in thesale of slaves, to cover both a three day period and a similar clausecovering a year. Malik explained, "The defects a lave or slave-girlare found to have from the time they are bought until the end of thethree days are the responsibility of the seller. The year agreement isto cover insanity, leprosy, and loss of limbs due to disease. After ayear, the seller is free from any liability."

Malik said,"Aninheritor or someone else who sells a slave or slave-girl without anysuch built-in guarantee is not responsible for any fault in the slaveand there is no liability agreement held against him unless he wasaware of a fault and concealed it. If he was aware of a fault, thelack of guarantee does not protect him. The purchase is returned. Inour view, built-in liability agreements only apply to the purchase ofslaves."

Yahya related to me from Malik from Yahya ibn Said from Salim ibnAbdullah that Abdullah ibn Umar sold one of his slaves for eighthundred dirhams with the stipulation that he was not responsible fordefects. The person who bought the slave complained to Abdullah ibnUmar that the slave had a disease which he had not told him about.They argued and went to Uthman ibn Affan for a decision . The mansaid, "He sold me a slave with a disease which he did not tell meabout." Abdullah said, "I sold to him with the stipulation that I wasnot responsible." Uthman ibn Affan decided that Abdullah ibn Umarshould take an oath that he had sold the slave without knowing that hehad any disease. Abdullah ibn Umar refused to take the oath, so theslave was returned to him and recovered his health in his possession.Abdullah sold him afterwards for 1500 dirhams.

Malik said,"The generally agreed upon way of doing things among us about a manwho buys a female slave and she becomes pregnant, or who buys a slaveand then frees him, or if there is any other such matter which hasalready happened so that he cannot return his purchase, and a clearproof is established that there was a fault in that purchase when itwas in the hands of the seller or the fault is admitted by the selleror someone else, is that the slave or slave-girl is assessed for itsvalue with the fault it is found to have had on the day of purchaseand the buyer is refunded,from what he paid,the difference between theprice of a slave who is sound and a slave with such a defect.

Malik said, "The generally agreed upon way of doing things among usregarding a man who buys a slave and then finds out that the slave hasa defect for which he can be returned and meanwhile another defect hashappened to the slave whilst in his possession, is that if the defectwhich occurred to the slave in his possession has harmed him, likeloss of a limb, loss of an eye, or something similar, then he has achoice. If he wants, he can have the price of the slave reducedcommensurate with the defect (he bought him with ) according to theprices on the day he bought him, or if he likes, he can paycompensation for the defect which the slave has suffered in hispossession and return him. The choice is up to him. If the slave diesin his possession, the slave is valued with the defect which he had onthe day of his purchase. It is seen what his price would really havebeen. If the price of the slave on the day of purchase without faultwas 100 dinars, and his price on the day of purchase with fault wouldhave been 80 dinars, the price is reduced by the difference. Theseprices are assessed according to the market value on the day the slavewas purchased . "

Malik said, "The generally agreed upon wayof doing things among us is that if a man returns a slave girl in whomhe has found a defect and he has already had intercourse with her, hemust pay what he has reduced of her price if she was a virgin. If shewas not a virgin, there is nothing against his having had intercoursewith her because he had charge of her."

Malik said, "Thegenerally agreed upon way of doing things among us regarding a person,whether he is an inheritor or not, who sells a slave, slave-girl, oranimal without a liability agreement is that he is not responsible forany defect in what he sold unless he knew about the fault andconcealed it. If he knew that there was a fault and concealed it, hisdeclaration that he was free of responsibility does not absolve him,and what he sold is returned to him."

Malik spoke about asituation where a slave-girl was bartered for two other slave-girlsand then one of the slave-girls was found to have a defect for whichshe could be returned. He said, "The slave-girl worth two other slave-girls is valued for her price. Then the other two slave-girls arevalued, ignoring the defect which the one of them has. Then the priceof the slave-girl sold for two slave-girls is divided between themaccording to their prices so that the proportion of each of them inher price is arrived at - to the higher priced one according to herhigher price, and to the other according to her value. Then one looksat the one with the defect, and the buyer is refunded according to theamount her share is affected by the defect, be it little or great. Theprice of the two slave-girls is based on their market value on the daythat they were bought."

Malik spoke about a man who bought aslave and hired him out on a long-term or short-term basis and thenfound out that the slave had a defect which necessitated his return.He said that if the man returned the slave because of the defect, hekept the hire and revenue. "This is the way in which things are donein our city. That is because, had the man bought a slave who thenbuilt a house for him, and the value of the house was many times theprice of the slave, and he then found that the slave had a defect forwhich he could be returned, and he was returned, he would not have tomake payment for the work the slave had done for him. Similarly, hewould keep any revenue from hiring him out, because he had charge ofhim. This is the way of doing things among us."

Malik said,"The way of doing things among us when someone buys several slaves inone lot and then finds that one of them has been stolen, or has adefect, is that he looks at the one he finds has been stolen or theone in which he finds a defect. If he is the pick of those slaves, orthe most expensive, or it was for his sake that he bought them, or heis the one in whom people see the most excellence, then the whole saleis returned. If the one who is found to be stolen or to have a defectis not the pick of the slaves, and he did not buy them for his sake,and there is no special virtue which people see in him, the one who isfound to have a defect or to have been stolen is returned as he is,and the buyer is refunded his portion of the total price."

Yahya related to me from Malik from Ibn Shihab that Ubaydullahibn Abdullah ibn Utba ibn Masud told him that Abdullah ibn Masudbought a slave-girl from his wife, Zaynab Ath Thaqafiyya. She made acondition to him, that if he bought her, she could always buy her backfor the price that he paid. Abdullah ibn Masud asked Umar ibn al-Khattab about that and Umar ibn al-Khattab said, "Do not go near herwhile anyone has a condition concerning her over you."

Yahya related to me from Malik from Nafi that Abdullah ibn Umarwould say, "A man should not have intercourse with a slave girl exceptone whom, if he wished, he could sell, if he wished, he could giveaway, if he wished, he could keep, if he wished, he could do with herwhat he wanted ."

Malik said that a man who bought a slave-girl on condition that he did not sell her, give her away, or dosomething of that nature, was not to have intercourse with her. Thatwas because he was not permitted to sell her or to give her away, soif he did not own that from her, he did not have complete ownership ofher because an exception had been made concerning her by the hand ofsomeone else. If that sort of condition entered into it, it was amessy situation, and the sale was not recommended.

Yahya related to me from Malik from Ibn Shihab that Abdullah ibnAmir gave Uthman ibn Affan a slave-girl who had a husband whom he hadpurchased at Basra. Uthman said, "I will not go near her until herhusband separates from her." Ibn Amir compensated the husband and heseparated from her.

Yahya related to me from Malik from Ibn Shihab from Abu Salamaibn Abd ar-Rahman ibn Awf that Abd ar-Rahman ibn Awf bought a slave-girl and found that she had a husband, so he returned her.

Yahya related to me from Malik from Nafi from Abdullah ibn Umarthat the Messenger of Allah, may Allah bless him and grant him peace,said, "If palm trees are sold after they have been pollinated, thefruit belongs to the seller unless the buyer makes a stipulation aboutits inclusion."

Yahya related to me from Malik from Nafi from Ibn Umar that theMessenger of Allah, may Allah bless him and grant him peace, forbadeselling fruit until it had started to ripen. He forbade thetransaction to both buyer and seller.

Yahya related to me from Malik from Humayd at-Tawil from Anas ibnMalik that the Messenger of Allah, may Allah bless him and grant himpeace, forbade selling fruit until it had become mellow. He was asked,"Messenger ofAllah! What do you mean by become mellow?" He said, "Whenit becomes rosy."

The Messenger of Allah, may Allah bless himand grant him peace, added, "Allah may prevent the fruit frommaturing, so how can you take payment from your brother for it."

Yahya related to me from Malik from Abu'r-Rijal Muhammad ibn Abdar-Rahman ibn Haritha from his mother, Amra bint Abd ar-Rahman thatthe Messenger of Allah, may Allah bless him and grant him peace,forbade selling fruit until it was clear of blight. Malik said,"Selling fruit before it has begun to ripen is an uncertaintransaction (gharar) ."

Yahya related to me from Malik from Abu'z-Zinad from Kharija ibnZayd ibn Thabit that Zayd ibn Thabit did not sell fruit until thePleiades were visible, at the end of May.

Malik said, "Theway of doing things among us about selling melons, cucumbers, water-melons, and carrots is that it is halal to sell them when it is clearthat they have begun to ripen. Then the buyer has what grows until theseason is over. There is no specific timing laid down for that becausethe time is well known with people, and it may happen that the cropwill be affected by blight and put a premature end to the season. Ifblight strikes and a third or more of the crop is damaged, anallowance for that is deducted from the price of purchase."

Yahya related to me from Malik fromDa'ud ibn al-Husayn from Abu Sufyan, the mawla of Ibn Abi Ahmad, fromAbu Hurayra that the Messenger of Allah, may Allah bless him and granthim peace, allowed the produce of an ariya to be bartered for anestimation of what the produce would be when the crop was less thanfive awsuq or equal to five awsuq. Da'ud wasn't sure whether he saidfive awsuq or less than five.

Malik said, ''Ariyas can besold for an estimation of what amount of dried dates will be produced.The crop is examined and estimated while still on the palm. This isallowed because it comes into the category of delegation ofresponsibility, handing over rights, and involving a partner. Had itbeen like a form of sale, no one would have made someone else apartner in the produce until it was ready nor would he have renouncedhis right to any of it or put someone in charge of it until the buyerhad taken possession."

Yahya related to me from Malik that Abu'r-Rijal Muhammad ibn Abdar-Rahman heard his mother, Amra bint Abd ar-Rahman say, "A man boughtthe fruit of an enclosed orchard in the time of the Messenger ofAllah, may Allah bless him and grant him peace, and he tended it whilestaying on the land. It became clear to him that there was going to besome loss. He asked the owner of the orchard to reduce the price forhim or to revoke the sale, but the owner made an oath not to do so.The mother of the buyer went to the Messenger of Allah, may Allahbless him and grant him peace, and told him about it. The MessengerofAllah, may Allah bless him and grant him peace, said, 'By this oath,he has sworn not to do good.' The owner of the orchard heard about itand went to the Messenger of Allah, may Allah bless him and grant himpeace, and said, 'Messenger of Allah, the choice is his.' "

Yahya related to me from Malik that he had heard that Umar ibnAbd al-Aziz decided in a case to make a reduction for crop damage.

Malik said, "That is what we do in the situation."

Malik added, "Crop damage is whatever causes loss of a third or morefor the purchaser. Anything less is not counted as crop damage."

Yahya related to me from Malik from Rabia ibn Abd ar-Rahman thatal-Qasim ibn Muhammad would sell produce from his orchard and keepsome of it aside.

Yahya related to me from Malik from Abdullah ibn Abi Bakr thathis grandfather, Muhammad ibn Amr ibn Hazm sold the fruit of anorchard of his called al-Afraq, for 4,000 dirhams, and he kept aside800 dirhams' worth of dry dates.