Physiognomy (is also forbidden), that means dependence on some special indications for attributing some of the persons to others and depriving some from others, contrary to what has been assigned criterion by the Legislator (i.e. Allah, the Exalted) for attribution (of a child to its father), such as sleeping in the same bed or otherwise.

Astrology (is also forbidden), that means inform with certainty and full confidence about the happenings in the universe, such as cheapness and dearness, drought and fertility, abundance of rainfall and its shortage, and such other things, like good and evil, profit and loss depending on the movement of the heavenly objects and the appearance and the conjunction of the stars believing them to be effect in this world independently or accompanied by Allah, who is more Exalted, than what the oppressors say, without their absolute effect, even if bestowed by Allah, the Exalted, provided that it is based on some sure evidence. The information about the solar or lunar eclipses, appearance of the new moon, conjunction of the stars and their separation after they are based on strong principles and rules do not belong to astrology. The errors in information which take place sometimes is due to the miscalculation and erroneous application of the principles (and formulae) as is also the case with other sciences.

Problem # 17 Adulteration with something concealed in the sale and purchase is forbidden, such as mixing water with milk, and mix up the low quality food with high quality food, or fat or vegetable oil with animal fat (or Ghee) without informing the other party. The transaction is not vitiated thereby, though the act is forbidden, and the right of option to rescind the contract rests with the other party after he comes to know of it. If the deceit consisted in showing something contrary to its real substance, such as sale of gold—plated or silver-plated object as one made of gold or silver, or the like, then actual transaction shall be declared void.

Problem # 18 It is forbidden for a man to charge a fee for what he is obliged to do as his individual duty, or, according to the more cautious opinion, even if as a collective duty, such as washing or shrouding the dead. If the act is obligatory for achieving an object, like burial, and the money has not been paid for actual job, or it has been paid for taking up a particular action, there shall be no objection in charging the fee. So what is forbidden is charging the fee for the actual burial. But if the Wali has selected a particular place or grave, and has paid money for digging grave in that particular place, then apparently there shall be no objection in charging fee for it, as a physician charges a fee for visiting a patient, even if there may be objection in charging the fee for the actual treatment, though, according to the stronger opinion, it would be allowed. If an act is Ta’abbudi obligation, then there is a condition of seeking Allah’s closeness in it, as in washing the dead, and so charging any fee for it shall not be allowed in any case.

Of course, there s be no objection in charging it for some of the non-obligatory acts, as mentioned under the Chapter on Washing the Dead. As regards the cases where one is bound to teach the problems relating to what is allowed and what is forbidden, one is not allowed to charge any fees for it. As regards teaching the Qur’än, not to speak of teaching other things like writing, or reading the script, etc., there is no objection in charging fee for it. By the obligations mentioned are meant what is obligatory on the person hired. But as regards what is obligatory on other than oneself where there is no condition of performance in person, there is no objection in charging a fee for the same, including the ibadat in which appointment of an agent is lawful. So there is no objection in hiring a person for performing ‘Ibadãt, such as Hajj, fasting and prayers.

Problem # 19 It is disapproved to take up money changing, sale of coffins and foodstuff as a profession and the same rule relates to the sale of slaves, as the worst among the mankind are those who sell human beings. The same rule applies to the adoption of slaughtering animals by slitting the throat or by piercing a spear in the neck (of a camel) as a profession. The same is the case with the profession of weaver or a cupper. The same rule applies to earning through giving on hire a male animal to fecundate a female animal for a definite one or more times, for some time, or without charging any hire. Of course, it is allowed to accept some gift or present for it.

Problem # 20 No doubt, earning and making one’s livelihood by means of sheer labor and effort is approved by Allah, the Exalted. There are several traditions that have come down from the Prophet, May Allah’s Blessing be upon him and his Progeny, and the Imams, May peace be upon them, containing persuasion and invitation to the same in general, and particularly for adopting trade, agriculture and rearing sheep and cows. Of course, excessive breeding of camels has been forbidden in the Traditions.

Problem # 21 It is obligatory on every one who indulges in trade or other types of earnings to learn their relevant rules and problems in order to distinguish the valid ones from the invalid ones, and safe from Ribã’. The necessary extent of it is the knowledge even if through Taqlid regarding trade and other transactions at the time of conducting them; rather, even after having conducted them, when there is doubt merely about their validity or invalidity. If, however, there is doubt about their being forbidden or permissible and not merely about their validity or invalidity, one is bound to refrain from them, as in case of doubt about whether a transaction involves Ribä’ or not due to the transaction itself being forbidden ( case of involving Riba), as is the case according to the more cautious opinion.

Problem # 22 There are approved and disapproved etiquettes for trade and earning. The approved ones are as follows:

1. The most important of them is moderation and economy in demand in a way that one may neither be a loser nor avaricious.

2. If some one repents in sale or purchase, and wants to rescind the transaction, he must accept it.

3. There must be equality of the prices for all customers. So there must be no difference between a haggler and others, so that one may charge less with the former and more with the latter. Apparently, there is no objection in case of difference due to moral excellence and faithfulness, or the like.

4. One must be ready to accept less for oneself, but must pay more to others.

The disapproved ones are as follows:

1. (Exaggeration) in praising one’s commodity by the seller.

2. Unusually discrediting the commodity by the buyer.

3. Swearing truly about the sale or purchase.

4. Selling the commodity from where it contains a defect or blemish.

5. Charging profit from a believer except in case of necessity, or when he buys the commodity for trade, or when the amount of purchase of the commodity exceeds one hundred Dirhams. If he earns thereby profit equal to his expenses of the day, it shall not be disapproved.

6. Charging profit from a person whom one has promised beneficence except in case of necessity.

7. Offering a commodity for sale between the rise of morning and the sun.

8. Entering the market before all others and leaving it after all others.

9. Deal with lowly people, not caring for what they say and what is said to them

10. Measure, weigh, count or survey a land when not fully conversant with it.

12. Intervene in the believers dealing, according to the opinion conforming to the traditional authority. Some hold it to be forbidden. If a person makes a higher offer in an auction, it shall not be disapproved.

13. Meeting the people riding (on camels, etc) or coming in caravans and proceed to them for conducting sale or purchase with them before their arrival in the town. Some hold it to be forbidden, though the sale and purchase shall be valid. This opinion is more cautious, though more apparently it is disapproved. It is disapproved on the following two conditions. Firstly, going out of the town for that purpose. Secondly, it may be deemed to be going out of the town. Thirdly, (the meeting) must take place in less than four Farsakhs, so that if it takes place in four Farsakhs or more, it shall not fall under the rule; rather it shall be considered a journey for trade. According to the stronger opinion, ignorance of the caravan people about the prices (of the commodities) in the town is not a condition (for the disapprobation of the transaction. Whether the rule also applies to transactions, other than sale and purchase, like hire, etc., there are two opinions regarding it

Problem # 23 Hoarding is forbidden. It means concealing the foodstuff and storing them and waiting for the rise in their prices, while they are necessary for the Muslims and they need them, and there is no one to supply them sufficiently. Mere concealment of foodstuff waiting for the rise in its price, while it is not necessary for the people, and there is some other supplier shall not be forbidden, though it shall be disapproved. If, however, a person conceals it during the period of its dearness for his consumption, and not for sale, it shall neither be forbidden nor disapproved. According to the stronger opinion the rule applies to four grains (namely wheat, barley, dates and raisins), animal fat (Roghan or Ghee) and edible oil. Of course, the application of the rule generally to whatever is needed by the people has been considered preferable, but the rule concerning hoarding is not proved except in cases mentioned. The hoarder shall be compelled to sell the goods hoarded, though, according to the more cautious opinion, he shall not be compelled to sell on a fixed price, but he shall be free to sell his good on whatever price he likes, except when he commits extortion, in which case he shall be compelled to reduce the price without fixing the price, If he fails to fix the price, the ruler (or the government) shall fix a price deemed proper.

Problem # 24 In case of having a free will, it shall not be permissible to accept assignments, ranks or jobs from a tyrant ruler, though the job itself may be lawful without regard to its assignment by the tyrant, such as collection of taxes, or Zakãt, or holding army and security charge, government of towns, or the like, not to speak of the job being itself unlawful, as charging ‘Ushr (A Tenth of the agricultural produce) or custom and other types of innovative, unjust taxes.

Of course, it shall be lawful to accept all of these assignments under duress and coercion with the sure apprehension of harm to one’s life, honour or considerable amount of property in case of non-acceptance, except when required to kill respectable persons, so that there is hesitation in its permission, rather it is forbidden in its general application with regard to the assignments in some of the jobs of injustice as dishonor to a group of Muslims, destroying their property, taking their women captive, and subjecting them to distress when he is afraid to some extent of harm to his honour or property though not subjected to distress, rather when in general he has some of such fears.

Acceptance of the first category of assignment, namely acceptance of some job lawful in itself, is permissible when the person accepting it carries out the interests of the Muslims and his fellow brothers in faith. Rather it shall be preferable if he accepts the assignments with the intention of doing good to the believers and protecting them against harm.

Rather, the acceptance of some positions and jobs is sometimes declared to be obligatory when the person holding the position or job is capable, for example, of removing some religious evil of forbidding some religious wrongs Nevertheless, there are many risks in accepting such jobs, except for those who are protected by Allah, the Exalted.

Problem # 25 Whatever taxes are charged by a (tyrant) government on lands in consideration of its conditions, in cash or kind, as well as on the palm trees and other tress shall be treated in the same way as in case of a just ruler. So a person who pays the taxes on land shall be absolved of the liability, and it shall be lawful for every one to purchase it or receive it free of cost or against some thing in exchange and to make any changes in it. If it is not received by the government, and it authorizes some one who is liable to pay an amount of tax, and he pays it to the authorized person, it shall be lawful for him, and he shall be absolved of the liability owed by him.

In modern times, however, it is more cautious for a person who benefits from such lands and is entitled to make changes in it in case of its tax as well as the person who receives anything from such property, also to refer to the judge of the religious court. Apparently the rule applied to a Shi’ah ruler is the same as applied to a Sunni ruler, though the caution for referring to the former is stronger.

Problem # 26 It is allowed for every one to accept the taxable lands, and he shall be responsible for them against some payment to the government, and shall be entitled to benefit himself from them by farming, planting trees, etc., or hand them over to some one lese and make him responsible for them against an enhanced payment, though it is disapproved in such case, except when he brings some new changes in them, as digging some canal in them or performs something in them that is helpful for the other party.

Rather, it is more cautious to avoid handing it over to some one else against enhanced payment except in case of bringing new changes in them.

SECTION TEN

CONTRACT FOR SALE Problem # 1 A Contract for Sale requires Declaration and Acceptance. Sometimes in a Declaration there is no need of Acceptance, as when a buyer or seller appoints the person dealing with him to be his agent in the sale or purchase, or both of them appoint a third person as their agent, and the person so appointed says: “I sell such and such for such and such”, in which case there shall be no need of Acceptance. According to the stronger opinion, the use of Arabic is not a condition in it, and it may be concluded in any language, even if it is possible to use Arabic. In the same way it is not a condition to express it clearly, but it is concluded by the use of any words conveying the intended sense according to the people using the language, as in Declaration one may say: “I have sold”, “I have given the ownership to”, or the like, while in Acceptance one may say: “I have accepted”, “I have purchased”, or “I have bought”, or the like. It is also not a condition to use Past Tense, but the use of a Preterite Tense (Mudari in Arabic) will suffice, though it is more cautious to use Past Tense. It is not a condition that it should not have any mistake as regards the root, form and I when the words used convey the sense intended according to the people using the language, and it should be considered to be a mistake of the same language and not another mentioned here, as one says: “Bi’tu” with Fath on “B”, or Kasr on ‘Ain”,or Sukun on “Ta”. It is better to use the language that has been phonetically corrupted as is prevalent among the people of Iraq or others whose language is sim to theirs.

Problem # 2 Apparently it is allowed to bring Acceptance before Declaration, as saying: “I have purchased” or “I have bought” when it is intended to convey the sense of initiating a purchase and not agreeing with it, so that it is not allowed (initially) to say: “I have accepted” or “I have agreed”. But if it were by way of a command or demand for something, as when a person intending to buy should say: “Sell such thing for so much’and the seller should say: “I have sold it to you for so much”, then apparently it would be valid, though it is more cautious for the buyer to repeat Acceptance.

Problem # 3 An uninterrupted sequence is a condition between Declaration and Acceptance, in the sense that there must not be long interruption between them in a way that it may cease to be a contract for sale or mutual agreement. A minor interval shall not vitiate it when it may be said that this Acceptance is for that Offer.

Problem # 4 Conformity between Declaration and Acceptance is a condition in the contract for sale. If they differ, as when the seller makes a Declaration in a particular way as regards the Buyer, object of sale, its price or other adjuncts of the contract relating to the conditions, while the buyer makes the Acceptance in some other way, the contract shall not thereby be concluded. If the seller should say: “I have sold this thing to your client for so much’, and the agent should say: “I have bought it for myself’, the contract would not thereby be concluded. Of course, if the seller says: “I have sold this article to your client”, and the client who is present, but is not addressed, says: “I have accepted, it is not far from being valid. If the seller says: “I have sold this article for so much”, and the agent says: “I have accepted it on behalf of my client”, then if the seller has intended to contract the sale with the person addressed himself, the contract shall not be concluded. If, however, he intended to address him whether he were the principal or the agent, the contract shall be valid.

If the seller says: “I have sold this article for one thousand” and the other party says: “I have bought half of it for one thousand or five hundred”, the bargain shall not be effective. If the other party says: “I have bought each half of it for five hundred”, it shall not be free from objection. Of course, it shall not be far from being valid if he intended each of the halves jointly.

If the seller says to two persons: “I have sold this article to both of you for one thousand’ and one of them says: “I have bought half of it for five hundred’, the bargain shall not be effected. If each of them says the same thing, it shall not be far from being valid, though it shall not be free from objection. If the seller says: “I have sold this article for so much on the condition that I have the option of three days, for example, to recede”, and the buyer says: “I have bought it without any condition”, the bargain shall not be effected. If the case is reverse, so that the seller makes the declaration without a condition, and the buyer accepts it with a condition, it shall not be effective conditionally. Whether it shall be effective generally and unconditionally, there is hesitation in it.

Problem # 5 If a person is unable to pronounce the words of the contract due to dumbness, or the like, it shall be replaced by gestures conveying the sense, even in case he is able to appoint an agent, according to the stronger opinion. In case of inability to make gestures too, it is more cautious to appoint an agent or resort to Mu’atat (or mutual surrender, where the seller gives the article sold to the purchaser and the purchaser in return gives the price to the seller, without the interposition of speech. In case of inability to do either, one may conduct the bargain by writing.

Problem # 6 According to the stronger opinion, a sale takes place by Muatat (or mutual surrender) in relation to things of small or high values. It consists of surrendering the thing itself with the intention of its becoming the property of the other against payment of its price, and the receipt of its price by the seller as an exchange. Apparently the bargain becomes effective as soon as the article sold is surrendered with the intention of its becoming the property of another against payment of an exchange with the intention of the purchaser to get hold of its ownership against payment of an exchange. So payment of the price is a total liability of the purchaser. There is hesitation in the effectiveness of the bargain by the mere receipt of the exchange (price) from the purchaser intending it to be a bargain of exchange, though the effectiveness is not devoid of force.

Problem # 7 In a Mu’atat (or mutual surrender) there are all the forthcoming conditions of Sighah (or prescribed words) found in a contract for sale excluding the words. It is not valid with the non-fulfillment of any of them as relate to the selling and purchasing parties or those relating to the price or the thing for which the price is paid, in the same way as, according to the stronger opinion, the forthcoming options are established in it.

Problem # 8 It is necessary for both the parties to a contract to conclude it by the prescribed words or Sighah except when there is an option. Of course, Iqalah is allowed in it, which means revocation of the contract by either of the two parties. According to the stronger opinion, Mu’atãt is also necessary from both the parties except in case of option, and Iqalah is also applicable in it.

Problem # 9 According to the more cautious opinion, in a Muãtãt sale, there are no conditions. So if one intends to establish or drop an option by a condition, or makes any other condition including specifying some time or date for any of the two things involving exchange (namely, the price and thing sold), one shall have to resort to the prescribed words for executing a sale and insert the condition therein, even if the buyer has accepted the condition earlier by negotiation and the transaction has been dependent on it, the condition shall not be devoid of authority and force.

Problem # 10 Is Mu’ätat practicable generally in all types of transactions or not, or is practicable in some but not in others? God willing, this will become clear in the next Chapters.

Problem # 11 As the sale and purchase take place by the seller and purchaser personally, they also take place through an agent or Wali of one or both the parties. A single person is allowed to act as the Wali of both the parties personally for one and through an agent for another or through an agent for both, or by way of a Wali for both, or through an agent for one and by way a Wali for another.

Problem # 12 According to the more cautious opinion, a contract for sale is neither allowed to be made contingent on something that cannot be achieved during the contract, even if it is sure to be achieved later or not, nor on something whose achievement is unknown during the contract. But as regards making it contingent on something whose achievement during the contract is certain, according to the stronger opinion, it is allowed, as when one says: “I have sold (this thing) to you, provided that it is Saturday today”, with the knowledge that it was Saturday.

Problem # 13 If a buyer takes possession of what he has purchased by an invalid contract, he shall not become its owner, and shall be responsible for it, in the sense that he shall be bound to return it to its owner. If it is destroyed even by an Act of God, he shall be bound to return its equivalent or its price, If, however, each of the seller and the buyer agree to the right of disposal by the other absolutely in what is in its possession even if it were invalid, it shall be lawful for each of them to dispose of and get benefit from what is in his possession, including its destruction, without any liability on him.

Chapter One - Conditions of Contract for Sale

These conditions concern either the two parties to the contract, (namely the seller and the buyer) or the two things to be exchanged (namely the thing sold and the price paid for it).

1-Conditions for the Parties to a Contract

Following are the conditions for the parties to a contract, (namely the seller and the purchaser).

First: Maturity. So a contract concluded by a minor is not valid, even if he is discreet and he is acting with the permission of the guardian. According to the stronger opinion, this applies to the cases when he concludes the contract independently in relation to things of significant value, and, according to the more cautious opinion, even in relation to the other things as well, though the validity of the contract in relation to things of small value, in case he was discreet according to the practice of the sane persons is not devoid of significance and force, as when he was in the position of a means where the bargain is in fact made between two mature persons, in which case there is no objection at all. As a bargain entered into by a minor in relation to things of significant value for himself is not valid, in the same way it is not valid if entered into on behalf of another, when he acts as an agent, even if allowed by the guardian to act as an agent. If he is an agent merely for pronouncing the prescribed words (of the contract), while the actual transaction has been carried out by two mature persons, then its validity is not far from being close. It is not devoid of reliability, but caution must not be given up.

Second: Sanity. So a contract entered into by a lunatic is not valid.

Third: intention. So a contract entered into by a person having no intention is not valid, as a contract concluded by one joking, one committing a mistake or an error.

Fourth: Free Will. So a contract entered under coercion is not valid. That means a person is afraid of giving up the contract by reason of a threat by another for inflicting some harm or distress to him. But the validity of a contract is not affected if it is entered into an emergency that leads to his compulsion, even if it is brought to bear by another, as when some oppressor compels him to surrender his property to him and so he has to sell it in order to give it to him. There is no difference in the alleged harm if it relates to the life of the person compelled or his honour or property or it relates to one related to him like his wife or children in whose case the harm inflicted on him or her shall be tantamount to a harm to himself. If the person compelled endorses it after the removal of the coercion, the contract shall be valid and binding.

Problem # 1 Apparently it is not a condition for the application of coercion that there should be no possibility of escape in disguise. So if a person is compelled to sell (something) or is threatened against giving it up, and he sells (that thing) in that sense while there was possibility of not intending so or intending something other than sale, he shall be treated as coerced, when escape from it was difficult, and there was likelihood of his falling into some distress, as is the case in such kind of situations. But when he was inclined to dissemblance, and it was easy for him to do so without any obstacle, then there is difficulty (in non-conclusion of the contract for sale due to coercion). But the condition of non-existence of such facility is not free from force.

Problem # 2 If a person is compelled to do either of the two alternatives, namely, either to sell his house, or do some thing else, and he opts to sell his house. If in the other alternative there was some religious or worldly obstacle, that he wanted to avoid, the contract for sale shall be treated as one concluded under duress; otherwise, it shall be as one concluded with free will.

Problem # 3 If a person is compelled to sell one of the two things opted, whatever he does for preventing damage to himself shall be treated as one done under duress. If he performs both together, if they were performed gradually, the one performed first shall be treated as one performed under duress to the exclusion of the other, except when he intends to obey the compeller. In such case, the first one shall be treated as valid. Whether the second one shall also be treated as valid? There are two opinions, the one closer to the principles of jurisprudence being the former. If he performs both of them simultaneously, then with regard to the contract for sale of both to be treated as valid, or both to be treated as void, or one of them to be treated as valid, and the decision to be arrived at by Casting lots, there are several opinions, the first one not being devoid of preference. If a person is compelled to sell something definite, and he adds something else to it, and sells both simultaneously, then the one done under duress shall be declared invalid, while the other shall be treated as valid.

Fifth: Both (the seller and buyer) must have the right of disposal. So the bargain shall not take effect if it is conducted by one other than the owner, when he is not an authorized agent or his Wali (or guardian) like the father, or paternal grandfather, or their Wasi (or executor), or the judge, and not one interdicted due to idiocy or insolvency, or any other reason for interdiction.

Problem # 4 The non-execution of the contract made by one other than the owner of right of disposal means non-enforceability and non-effectiveness, not voidance. So if the owner endorses the contract made by one other than him, or the guardian ratifies the contract concluded by an idiot or the creditors endorse the contract made by a bankrupt person, the contract shall be valid.