Problem # 5 There is no difference in the validity of a contract for sale concluded by one other than the owner with his permission whether he intends to conclude it for the owner or for himself, as the contract made by a usurper or one who is under the impression that he is the owner, as also between the case when it is previously forbidden by the owner or not, though there is hesitation (in its validity when it was previously forbidden by the owner). For the effectiveness of the permission, it is a condition that the owner should not have rejected it previously after its conclusion. So if a stranger executes a bargain, and the owner rejects it, and then endorses it, according to the opinion closer to the traditional authority, the subsequent permission shall be void, though it is not free from objection. If the owner rejects it subsequent to his endorsement, his rejection shall be void.

Problem # 6 As permission takes effect by any word signifying the consent with the contract for sale as understood by custom, although by mere hint, as by saying: “I have endorsed’, “I have permitted”. “I have enforced”, “I have consented”, or the like, or by the seller saying to the buyer: May Allah grant Blessing to you in it”, or other such hints. Likewise, it takes effect by any deed alluding to it by custom, as, (in case of a sale contracted by an unauthorized person), the owner should make a free disposal of the price attentively. Similar is the case when the owner permits the sale (contracted by a stranger) as it requires the permission of the sale in relation to the thing valued, as when a wife surrenders herself to the embraces of the husband in token of permission when her marriage is contracted by a stranger (or an unauthorized person).

Problem # 7 Does permission signify the validity of the contract made by a stranger from the time it had been concluded, so that it means that the object of sale came under the ownership of the buyer and its price under the ownership of the seller from the time of the conclusion of the contract, or it is effective from the time it is given. The consequence of it comes to light when some growth (or benefit) intervenes the time of the conclusion of the contract and that of tendering the permission. In the first alternative, any growth in the object of sale shall belong to the buyer, while any growth in the price shall belong to the seller, while in case of the second alternative it shall be otherwise. The problem is difficult, and, therefore, caution must not be given up by making a compromise in relation to the growths.

Problem # 8 If the owner is willing with the sale at heart, but has not tendered permission nor has appointed any agent in the sale or purchase, it is not far from being beyond an unauthorized contract, particularly in case of his inclination towards the contract and consent. If, however, the case is such that had the owner been inclined, he would have consented, then the contract shall be deemed an unauthorized one, and beyond the subject of the present Problem. But if he was willing but not inclined in detail towards it, even then it is beyond the pale of an unauthorized contract due to one reason that is not devoid of force.

Problem # 9 In an unauthorized contract it is not a condition that the intention must be for concluding an unauthorized contract. So if a person is under the impression that he is a guardian or an agent, but later it transpires to be otherwise, it shall be an unauthorized contract, and can be validated through subsequent sanction. On the contrary, if a person (concluding a contract) is under the impression that he has no authority of disposal, but he turns out to be an (authorized) agent or guardian, then apparently the contract shall be valid, without there being any necessity of subsequent permission, though with some hesitation in the latter case. Similar is the case when a person is under the impression that he is not the owner, but he turns out to be one. But the invalidity of the contract and the necessity of permission in it is not devoid of force.

Problem # 10 If a person buys something without authority, then becomes its owner by having the authority through purchase or without it as through inheritance, then the voidance of the permission in not being of any use is not devoid of force.

Problem # 11 It is not a condition for the person giving the permission to be an owner at the time of the conclusion of the contract. So it is allowed that the owner may be one at the time of the conclusion of the contract and another at the time of giving the permission, as the owner dies at the time of the conclusion of the contract before tendering permission, in which case it shall be lawful for his heir to tender sanction. A better case is when the owner had no authority for disposal at the time of the conclusion of contract (by a stranger) due to some impediment like being a minor or idiot or the like, and later the impediment is removed, then the contract shall be validated by his sanction.

Problem # 12 If several bargains of sale take place (by strangers) in relation to the property of another, the contract may relate to the property itself or its price paid in exchange. In the first instance, it may take place by a single unauthorized person, as he sells Zayd’s house repeatedly to several persons, or it takes place by several persons, as when a person sells it to another for a horse, and then the buyer sells it to another person for a donkey, and then the other buyer sells to another for a book, and so on. In case of the second supposition, it may take place by a single person for several prices one after another, as when he sells Zayd’s house for some cloth, and then sells the cloth for a cow, then sells the cow for a bedstead, and so on. Or the sale may take place on the price with several persons repeatedly, as when he sells the cloth in the above example, repeatedly to several persons. Thus, it comes to four modes, and the owner may sanction any of them he likes, and that particular contract shall be validated by his sanction. But as regards the other modes, it requires a lot of detail that cannot be given in this brief Chapter.

Problem # 13 The difficulty in the rejection that is an impediment in the effectiveness of the permission has already been mentioned. Sometimes it also proves to be an impediment in its affiliation absolutely, even if this rejection has been made by a person other than the owner at the time of the conclusion of the contract, as when he says: “I have cancelled’, or “I have rejected”, or other words that signify the same meanings, as a disposal in it in a way that leads to the loss of the object of permission, either according to the reason as destruction, or according to the Shariah as manumission Sometimes, particularly in relation to the owner, rejection becomes an impediment in its affiliation with the permission at the time of the conclusion of the contract, and not in all circumstances, as the disposal causing the transfer of the capital asset like sale, gift or the like, in which case the object of permission is not lost, except in relation to the person from whom it is transferred. But the person to whom it is transferred is entitled to give permission in case when it may not be a condition for the person giving permission to be an owner at the time of the conclusion of the contract, as already mentioned. As regards a contract for ease, it is no impediment in permission at all, even in relation to the leasing owner, as there is no contradiction between them, in consequence his asset shall be transferred to the buyer without any benefit.

Problem # 14 In all cases where permission has not been given by the owner, regardless whether rejection has been made by him or not, as a hesitant person, he shall be entitled to demand the return of his property from the person in whose possession he has found it, provided that it subsists. Rather, according to the stronger opinion, he shall be entitled to have recourse to him for the benefits accruing, as well as those not accruing to the possessor during the period (it has been in his possession), and he, in turn, shall be entitled to demand the unauthorized seller to return the asset as well as its benefits accrued thereon while it was in his possession and he had given them to the buyer. Likewise, the owner is entitled to demand the buyer to return the asset itself as well as the benefits accrued thereon or lost during his possession. In case, the return requires some expenditure, the owner shall also be entitled to demand it from the possessor. This is in case of subsistence of the asset. But in case it is lost, he shall be entitled to have recourse to the (unauthorized) seller for its equivalent, if it was lost during his possession. if the asset has revolved in several hands, so that it was in the possession of the unauthorized seller, who delivered it to a buyer, and he to another, and so on, and then it was lost, the owner shall be entitled to have recourse to any of them for its equivalent, and that person shall be entitled to have recourse to all the buyers distributing the loss with equal or different shares. If the owner receives the equivalent and the damage from one of them, he shall not be entitled to have recourse to the rest of them. This is the rule in respect of the (unauthorized) seller and the buyer and all those in whose possession the asset had been.

As regards the rule relating to the buyer and the unauthorized seller with the latter’s knowledge about the former being a usurper, he is not entitled to have a recourse to him for what the owner had recourse to him and for the damages sustained by him. Of course, if he had paid the price to the (unauthorized) seller, he shall be entitled to demand its return from him in case of its subsistence, and have recourse for its equivalent if it is lost or he has lost it. In case of his ignorance about the situation, he shall be entitled to have recourse to him for the whole loss sustained by him from the owner, and for all the damages incurred to him in his benefits, growths, cost of the beast of burden, whatever has been spent by him on the asset itself or whatever of it is lost by him and cost of the horse, agricultural farm, excavation (of wells), etc., and the (unauthorized) seller is liable to pay all these expenses, and the buyer who had been ignorant of the situation shall be entitled to have recourse to him.

Problem # 15 If the buyer has constructed on another’s land purchased by him any building, planted plants or has made some farming, the owner shall be entitled to urge him to remove whatever has been constructed by him, level the land and demand compensation for whatever damage has been done by him to the asset without the owner being responsible for whatever damage has been done to it, in the same way as the buyer shall be entitled to remove that with the responsibility to compensate whatever damage has been done to the land, while the owner shall not be entitled to urge upon the buyer to leave it as it is though free of charges, as also the buyer shall not be entitled to leave them as they are, even if he is required to pay some wages (for its labor). If he has excavated any well or a canal, he shall be bound to fill it and return it to the original condition, if demanded by the owner, and if possible. He shall also be responsible to make good the loss due to any detect, and he shall not be entitled to demand from the owner remuneration for his labor or what he has spent on it, even if it results in rise in its price, as he is not entitled to return to its previous condition by filling (the pits, etc.), even if the owner does not agree with it. Of course, he shall be entitled to have recourse against the seller who is the usurper, for the remuneration of his labor and whatever money he has spent on it as well as all the damages sustained on it provided that he is ignorant of the situation. The same rule shall apply regarding whatever quality the buyer has added to what he has purchased without the quality being there in the asset purchased, as when he has turned the wheat into flour, or span the cotton into thread or wove a fabric with it, or moulded the silver. Here there are several details that will be mentioned, God willing, under the Section on Usurpation.

Problem # 16 If the seller combines his property with that of another, or sells what was a joint property of his and another, the bargain shall take effect in relation to his property for which he has been paid a price, while the validity of its effect in relation to the property of another shall rest with the latter’s sanction, so that if he endorses it (well and good); otherwise, the buyer shall have the option to rescind the contract due to the division of shares in the property provided that he had been ignorant of the fact.

This is the case when there is no impediment regarding the division of the shares along with the absence of the other person’s sanction such as Ribä and the like, otherwise, the bargain shall be void ab initio.

Problem # 17 The method of finding out the share of each of them in the price is to assess it from the actual price, it shall be evaluated in proportion to the price of the other, and then the share of each of them shall be determined according to that ratio. So if it is sold combined for six, while the price of one of them is six and that of the other three, then the share of person whose price was three shall be half of that of the other, namely, six, so his share shall be two and that of the other four.

This method is applicable in case of prevalent bargains in which the two thin sold do not differ individually and when combined. But in case of their difference with regard to the prices being less or more or different, then it shall not be valid. Apparently the rule is to assess the price of each of them individually when combined, and then each of them shall get the price according to his ratio to the aggregate of both the prices.

Problem # 18 A father and paternal grandfather, how high so ever, are allowed to dispose of the property of minor through sale, purchase or lease, etc., and each of there has an independent right of guardianship. According to stronger opinion, moral soundness (Adalat) is not a condition for them. (Observation of) the minor’s interest is also not a condition in the effectiveness of their disposal, but mere absence of cause of corruption or evil is sufficient, but the caution of observing (the minor’s interest) must not be given up.

As they have the right of guardianship for making any disposal in the minor’s property, they have the same right in relation to his person with regard to giving him or hire, or in marriage, with the exception of (right of) divorce (on behalf of the minor), a right that is not enjoyed by them; rather, they have to wait until his attaining maturity. Whether the right to rescind the contract of marriage where there is a due cause or excusing the (remaining) term of a temporary marriage (Utah) is also affiliated to the right of divorce, there are two alternatives, rather two opinions, the stronger being in favour of non affiliation.

The right of guardianship does not belong to any close relative other than two, (namely, the father and the paternal grandfather) including the mother, brother, and maternal grandfather, as they are treated as strangers.

Problem # 19 As the father and paternal grandfather have the right of guardianship over a minor during their life, similarly they have the right of appointing an administrator on him for after their death. His acts have the same force as those of the father and paternal grandfather, though with hesitation in matter of marriage. Apparently there is the condition of (observing) the minor’s interest in the disposal by the administrator, and the absence of cause of corruption or evil merely shall not suffice, as, in his case, the condition of his moral soundness (Adalat) is more cautious, though his honesty and reliability are not far from being sufficient.

Problem # 20 In case of demise of the father, paternal grandfather or an administrator appointed by them, the religious authority, namely, a morally sound Mujtahid shall have the right of guardianship in disposal of the property of minors with the condition of (observation of the minors’) happiness and interest; rather, it shall be confined to what if abandoned shall be harmful and vicious for the minors. In the event of the demise of the religious authority, the right shall go to the believers, to be more cautious on the condition of their moral soundness. They shall be entitled to dispose of the minor’s property in matters fulfilling the condition of his happiness and interest; rather, according to the more cautious opinion, by giving up what is vicious for the minor.

Following are the conditions for the things to be exchanged, namely, the thing sold and the price paid for it.

First. In the thing sold, it is a condition that, according to the more cautious opinion, it should be an object capable of being owned, regardless whether it has an outward existence or entirely owed by the seller or any other person. According to the more cautious opinion, it is not allowed to be a usufruct, as the usufruct of a house, a quadruped animal, or deed, like stitching a garment, or a right, though its permissibility, particularly in case of rights is not devoid of force. As regards the price, it may be a usufruct, or a deed capable of being owned; rather, it may be a right that can be transferred from one person to another, like the right of interdiction (Tahjir) or monopolisation. As regards the permissibility of a right that is capable of being abolished without being transferable as the right of option and right of pre-emption, there is hesitation in it.

Second It is a condition in the things exchanged, (namely the thing sold and the price paid) that it may be capable of being measured, weighed or counted in the same way as the other, and merely being capable of being observed is not sufficient. Nor is it sufficient to measure it with what it is not measured. So it is not sufficient to assess by measuring or counting something that is weighed, or assess without counting a thing that is counted. Of course, there is no objection in taking a part of the thing that is counted or weighed, and count it or weigh it with counting or weighing machine, and then assess the rest accordingly if it is safe from difference and ignorance. This, however, is not applicable in assessing by measurement.

Problem # 1 It is allowed to rely on the information of the seller about the amount of the thing sold. So a person may buy a thing according to the information given to him by the seller about it. If later it turns out to be defective or deficient, he shall have the option to cancel the bargain. If he rescinds the bargain, he shall be returned the entire price (paid by him). If the buyer agrees with it, the price shall be reduced accordingly.

Problem # 2 The ocular demonstration of a thing that is generally sold by load is sufficient, as hay, dried or fresh grass, or some kinds of fuel wood. Of course, if in some places according to the prevalent custom they are sold by load, mere ocular demonstration is enough. Similar is the case with several liquids and medicines kept in vessels and bottles. That are also usually sold in the same way. There is no objection in their sale as long as they are contained in the vessels and bottles, and ocular demonstration is enough in their case. Rather, even in case of animals slaughtered, ocular demonstration is sufficient as long as they are not skinned, but once they are skinned, they have to be weighed. Generally speaking the condition of things changes with the change in circumstances and places. So in some places and circumstances they are weighed, while in others they are not. Similar is the case with the things that are sold by numbers.

Problem # 3 Apparently ocular demonstration is not sufficient in case of the sale of land whose value is assessed according to meters and yards, and it is indispensable to have actual information about its area. Similar is the case with most of the cloth before it has been stitched or cut. Of course, if it is a custom for the rolls of cloth to be in a particular number of yards, it shall be allowed to sell and buy them by number relying on the prevalent custom and depending on it in the same way as one relies on the information provided by the seller of a thing.

Problem # 4 If the system of sale of a thing differs in one place to another, as, for example, it is sold by weight in one place while by number in another, then the criterion for bargain shall be its local system.

Third Knowledge about the kind and description of the objects exchanged that leads to difference in their price and appeal. This is achieved by ocular demonstration as well as description removing ignorance. It is allowed to suffice with the previous observation in, case of things that usually do not change in case any change in them has not come to the knowledge. In case otherwise, there is hesitation; rather, it is close to be non - permissible.

Fourth The objects exchanged must be owned and free. It is, therefore, not allowed to sell water, green grass, pasture, before they are possessed, fish and wild animals before they are hunted, wastelands before they are developed. If a person digs a well in an ownerless land, or excavates a canal and runs open water in it like a river, or the like, he shall become their owner, and, in such case, shall be entitled to sell them.

Likewise, it is not allowed to sell a mortgaged object except with the consent or permission of the mortgagee. If the mortgagor sells and then the mortgaged object becomes free, then apparently its sale shall be valid without any need for the mortgagor’s permission. Similarly, it is not allowed to sell an endowed property except in certain circumstances.

Problem # 5 An endowed property may be sold in the following circumstances.

1. When the endowed property is ruined in a way that it cannot be utilized in its original form, such as the trunk of an old and rotten tree, a worn out mat, a ruined house that cannot be utilized, including even its courtyard. To this is added the asset that loses total utility due to some reason other than ruination.

Similarly, an object that has lost utility considerably due to ruination, etc. in a way that it may usually be called to be of no use, as when a house is razed to the ground, and becomes flat as a courtyard so that it may be leased on a nominal hire, and should become such that if it is sold or exchanged with some other property, its benefit shall be like before or almost like before.

This is all when it is not hoped to return to its previous condition; otherwise, according to the stronger opinion, it shall not be allowed. Similarly, if its utility has reduced but not to extent to be equivalent to non-existent, then apparently it shall not be allowed to be sold, even if it is possible to purchase with its price something which has plenty of profit. This is when the object has been ruined or has gone beyond use presently. If its existence would lead to its ruination, then there is hesitation in the permissibility of its sale, particularly if its future ruination is based on mere conjecture; rather, in such case, its non-permissibility is not devoid of force, in the same way as it would riot be allowed, to be sold without hesitation if suppose there is possibility of its being utilized after ruination in the same way as it was utilized previously in another way.

2. If the endower has made it a condition to sell it in case of reduction of its utility, increase in its tax, or difference may crop up among the persons to whom it is endowed, or they happen to be in an exigency or extreme need, in such case there is no objection in its sale or exchange, though with hesitation.

Problem # 6 It is not allowed to sell a forcibly conquered land. It is the land that is forcibly seized from the infidels.

As regards the land that was developed at the time of conquest, it is the property of the Muslims in general. So it remains in its original state in the possession of the person who develops it; tax shall be charged on it and spent on the welfare of the Muslims.

As regards the land that was undeveloped at the time of conquest, and it was developed later, it shall belong to the person who develops it. This will solve the problem of the houses, real estates and some pieces of the land with which some deal of property is made, as they are likely to be lawfully owned by the person who has made some changes in them. So as long as a property is in the ownership of a person, it shall be considered to be his property, except when it transpires to be otherwise.

Fifth Power to deliver (the object and its price). So it is not allowed to sell an owned bid when flying in the air, nor an owned fish thrown into water, nor a quadruped animal that has escaped. If the seller is not capable of delivering the object, but the seller is capable to take its delivery, then apparently the sale shall be valid.

Chapter Two - Options

There are several kinds of Options. They are as follows.

First — Option of the Meeting (Khiyar-i Majlis)

After the conclusion of a contract (for sale), both the parties to the contract shall have the option to retract as long as they do not separate. If they separate, even if a step, so that it is considered separation according to the prevalent custom, both the parties shall lose the right of option, and the contract (for sale) shall become binding.

If, however, both the parties leave the place of meeting in a way that they are together, the right of option shall remain intact.

Second — Option of the Animal

If a person buys an animal he shall have the right of option until three days after the conclusion of the contract (for sale). But if the price paid is in the form of an animal, there is hesitation in the establishment of the right of option for the seller; rather, its absence is not devoid of force.

Problem # 1 If the buyer makes some change in the animal signifying a kind of consent and it is mostly construed as such, he shall forfeit the right of option, as when he shoes the animal, or trims its hooves or its hair, or dyes it, or dyes its hair, etc. But every action does not signify consent of the buyer, nor every new and unusual act considered to be a proof of the buyer’s consent, as riding the animal in an unusual way, or feeding the animal with fodder and giving it water to drink.

Problem # 2 If the animal is lost during the period of option, it shall be treated as the property of the seller, the sale shall be annulled and the buyer shall have the right to demand the return of the price if he has already paid it (to the seller).

Problem # 3 If some defect arises in the animal within the three days without the fault of the buyer, it shall not obstruct the cancellation (of the contract) or return (of the animal by the buyer).

Third — Option of Condition

The Option of Condition is obtained by stipulation during the conclusion of a contract (for sale). This may be made for both or one of the parties (to the contract) or a third party. It does not admit of a special time; rather, it is according to the what has been stipulated by both the parties (to the contract), regardless of its being for a short or long time, but the time must be specified as regards its being connected or separate. Of course, if a specified time is mentioned (in the contract), such as, for example, a month, without specifying from which month, then apparently it shall be connected with (the date of conclusion of) the contract.

Problem # 1 It is allowed to stipulate option for one or both of the parties (to rescind the contract) after obtaining an order or consulting with a third party relating to the contract, so that the latter’s opinion is to be followed as he deems desirable with regard to the sustenance or cancellation of the contract. In case of such a stipulation, specification of the time is also a condition, and the person who has the stipulated option shall not be entitled to rescind the contract before obtaining the opinion of the said third party, but he is not obliged to do what the third party orders him to do; rather, it shall be permissible for him to do so. If the seller stipulates for the buyer that, for example, he has three days to consult his friend or agent, then if he deems desirable he shall abide by it, otherwise not. According to this stipulation, the buyer shall have the right of option with the supposition that his friend or agent may not consider the contract desirable, but not absolutely, so that the buyer shall not have the right of option except with the said supposition.

Problem # 2 There is no objection in declaring that the option of condition is not exclusively applicable to (a contract for) sale. Rather it is applicable to a large number of binding contracts. So also there is no objection in declaring that it is not applicable to unilateral obligations, such as a divorce, emancipation, absolution, and the like.

Problem # 3 It is permissible to stipulate option for the seller in case he returns the actual price (of his commodity) or what is generally considered similar to it until a specified period of time. So if the specified time lapses and he fails to bring the whole price, the (contract for) sale shall become binding. This is generally known as Bay’ al Khiyãr (sale with the right of option) Apparently it shall be valid to stipulate that the seller shall be entitled to rescind the whole contract by returning part of the price or part of the contract by returning part of the price. It is sufficient for the seller in returning the price to do what concerns on his part in receiving the price, even if the buyer refuses to get the delivery (of the subject). So if the seller offers the price and presents it to the buyer, and the buyer is able to receive it but refuses to do so, the seller shall be entitled to rescind the contract.