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There are some rules of options that are common to all types of options, while there are some rules that relate to specific options. The present brief description does not admit of their details.
From among the common rules is that when a person having option dies, his right of option shifts to his heirs, without any difference in the types of option. Whatever is considered an impediment in the inheritance of property is also an impediment in the inheritance of options. So also whatever deprives an heir of his share in the inheritance, like the existence of a relative more closely related to the deceased, also deprives such heir in case of options too. If the option concerns some special property that is forbidden to some of the heirs, as land in relation to a wife or a Hubwah (a ring, garments, a sword and Mushaf ( the Quran) that is forbidden to any of the sons except the eldest one, such heir ( is deprived of a share in such property) shall not be absolutely forbidden to enjoy the right of option relating to it.
Problem # 1 There is no problem when there is a single heir. If there are several heirs, then it is a stronger opinion that the option shall belong to them collectively in a way that some of them shall not be entitled to revoke the bargain without including the rest, neither in relation to the entire object of sale nor in relation to their shares.
Problem # 2 If all the heirs agree to revoke the contract of sale of the object sold by their testator (Murith) then if the price in its original subsists, it shall be returned to the buyer. If it does not exist, it shall be deducted from the property of the deceased. If there is no property left by the deceased, then whether it shall be a debt against the deceased and remain a liability against him, to be set off by the object of sale returned, so that if there is a residue it shall belong to the heirs, and if it does not suffice for setting off what is due from him, the residue shall be liability of the deceased or of the heirs commensurate with their respective shares, there are two opinions, the more in keeping with the guiding principles is the former.
Problem # 1 If a person buys a garden, it shall include its land, trees and palm-trees, as well as its buildings, its surrounding walls and other things that are considered to be attached to it, as the well and the Persian wheel, if it is usually included in it, and animal pens, and the like. On the contrary if a person buys a land, then its palm-trees and other trees in it shall not be included in it, except when so stipulated. Likewise, the foetus shall not be included in the sale of its mother, unless there is a stipulation to that effect, except when it is usually tied with the mother, as it is so typically. The same rule shall apply to the fruits of a tree. So if a person sells a palm tree, then if it is grafted, its fruits shall belong to the seller, and the buyer shall be bound to leave so much of the dates on the tree as are usually left on it. If it is not grafted, the fruits shall belong to the buyer, and apparently it is included in the sale. In cases other than sale and purchase, the fruits belong to the transferor without there being any condition or prevalent practice to the contrary, irrespective of the tree being grafted or not, as the rule relate to palm-trees and are not applicable to other cases. Rather, the fruits belong to the seller except in case of a condition or prevalent practice tying the fruits to the trees.
Problem # 2 If a person sells trees and leaves the fruits to belong to the seller, and they may need watering, then their master shall be entitled to water them, and the owner of the trees shall not be entitled to forbid him from doing so. Similar shall be the rule in case otherwise. If watering damages one of them and its absence damages the other, then whether the right of seller who is the owner of the fruits shall be preferred or that of the buyer who is the master of the trees, there are two opinions, the latter is not devoid of- preference, while it is more cautious to reach a compromise and mutual agreement instead of preferring either of them, even if it is damaging to the other.
Problem # 3 If a person sells a garden, and e a palm-tree, he shall be entitled to an entrance to and exit from it as well as drawing its branches and roots from the ground, and the buyer shall not be entitled to forbid him from doing so. If a person sells a house, it shall include the land and its lower and higher buildings, except when the higher buildings are independent as regards their entrance and exit and appurtenances, etc., that allude to its being excluded and independent according to the prevalent practice.
Similarly, it also includes the basements, wells, doors, woods found in the building as well as the pegs fixed in it, and also the passage attached to the staircase, but the grinding mill fixed in it is not included in it except by a stipulation in its favour.
Likewise, if there is some palm-tree or some other tree, (it shall also not be included in it), except by a stipulation to that effect, even if the buyer says; (it includes) whatever is around within its enclosure or there is prevalent practice leading to its confinement to it, as is generally the case. It is not far from including the keys in the building.
Problem # 4 The stones produced in the land, as well as the natural mines in it are included in the sale of the land, contrary to the stones lying buried in it, or treasures kept as a trust in it, and the like.
Problem # 1 The parties to the sale and purchase are bound to deliver the object of sale and its price after the conclusion of the contract of sale in case there is no stipulation for delay. So neither of them is allowed to delay, if possible, without the consent of the other party. If both of them abstain, they shall be compelled. If one of them abstains, he shall be compelled. If the seller and buyer stipulate delay in the delivery to a specified time, it shall be permissible. Neither of the parties is allowed to delay the delivery within the time stipulated with the other party Of course, if any of the parties delays the delivery until the maturity of the time, then the other party shall also be entitled to delay the delivery of the thing stipulated.
Similarly a seller is allowed to stipulate for himself the right of residence in the house, or riding the animal (or beast of burden) or till the land, or the like until a specified period. Taking possession and delivery, in case of a house or a farm is its evacuation by taking his hand off from it and removing hindrances to evacuation as well as giving permission to the other party to make any change in a way that it goes under the domination of the other. However, in case of movable objects like food and clothing, or the like, as regards their evacuation or taking possession absolutely or the details of their categories, there are several opinions, It is not far from sufficiency in evacuation in cases where the seller and buyer are bound to deliver the commodity sold and its price to the other party, even if does not lead to cessation of his liability on the supposition of absence of his liability for its loss or destruction in a likelihood that is not far, even if it is not sufficient in other cases where delivery of the object is a condition, the details of which cannot be given here.
Problem # 2 If the object of sale is destroyed before its delivery to the buyer, it shall be treated as a property of the seller, and so the sale shall be cancelled and the price shall be returned to the buyer. If some growth has taken place in the object of sale before the buyer takes its possession, such as the offspring (of animals) or fruits, they shall belong to the buyer. If they become blemished before the buyer takes their possession, the buyer shall have the option either to rescind the contract of sale or endorse it against the entire price. As regards his right to have indemnity, there is hesitation in it, and the stronger opinion is in favour of its absence.
Problem # 3 If a person sells several things at a time, and some of them are destroyed the buyer takes their possession, then the contract of sale shall be revocable in relation to what has been destroyed, and its specific price shall be returned to the buyer. The buyer shall be entitled either to revoke the contract of sale or consent with his share in the price of what has been remained intact.
Problem # 4 Besides delivering the object of sale, a seller is bound to vacate the goods etc. lying in it, even if he is busy in the farm the harvest time of which has reached, he shall have to remove it. If it has roots transferring which may be harmful for it like cotton or maize, or there are some stones in the field lying buried in it, he shall be bound to remove them too and level the ground. If there is something in that cannot be removed except by bringing some change in the building, he shall be bound to remove it and repair what has been demolished. If there is some farm in it the harvest time of which has not reached, there is hesitation in its retention until the harvest time without any payment. Anyhow, caution must not be given up by reaching some compromise.
Problem # 5 If a person buys something, but does not take its delivery, then, if it is something that is neither measured nor weighed, it shall be permissible to sell it before taking its delivery. Similar is the case when the thing may be measured or weighed, but he sells it for what he had bought. If, however, he sells it with some profit, then there is hesitation (in declaring its sale valid). According to the stronger opinion, its sale is valid, but with an amount of disapproval. Anyhow, caution must not be given up. This is when he sells it to someone other than its seller. In case otherwise, there is no hesitation in its validity absolutely, as also there is no hesitation when he comes to own a thing without buying it, as through inheritance, dower, or Khul’, etc. Apparently its prohibition or disapproval relates particularly to its sale, so that there is no restriction on its giving it as a dower, or wages etc.
Chapter Six — (Sale on) Cash and Credit Problem # 1 If person sells something but does not determine the time for payment of its price, its payment shall be treated to be in cash and immediately. The seller may demand the price at any time after its delivery. The seller is not entitled to refuse to receive it whenever the buyer intends to pay it.
If the time of payment of the price is already determined, it shall be treated as credit, and the buyer shall not be bound to deliver it before its appointed time, even if it is demanded (by the seller), in the same way as the seller is also not bound to receive it if it is paid by the buyer before its appointed time. It is indispensable to fix the time exactly so that it may not admit of any likelihood of excess or decrease.
If there is a stipulation for payment to be made later, but no time has been fixed, or it is fixed indistinctly, the sale shall be declared void. According to the stronger opinion, it is not sufficient for the time to be fixed by itself without the knowledge of both the parties to the contract of sale.
Problem # 2 If a person sells something for a price payable immediately and a higher price payable later, so that he may say: “I shall pay it to you for ten in cash and for fifteen on credit for one year”, and the buyer also agrees to it, then there is hesitation in declaring it void. If it is said that this bargain shall be valid and the seller shall be entitled to receive the lowest price even if paid at the appointed time, it shall not be far (from being valid). Of course, there shall be no hesitation in declaring it void if the person sells the thing for a price payable after some time and for a higher price payable after some other time.
Problem # 3 It is not permissible to change a price payable immediately to one payable later, rather any debt, to a higher one so that the price to which the seller is entitled may be raised in quantity so that it becomes payable at a later time. Similarly, it is not permissible to increase the time of payment of a price payable at a later date, regardless whether it is done by way of sale, conveyance or Ju’alah, etc., but it is valid otherwise, and that is fixing the time by decreasing the price by way of conveyance or Ibrã’ (release, or remission of the debt).
Problem # 4 If a person sells something, it shall be permissible for him to buy it before the maturity of its appointed time or after it for the commodity of the price or something else, regardless whether it is equivalent to the former price or not, and whether the latter sale is in cash or on credit, and this is permissible when no such stipulation is made in the former transaction. If the seller stipulates in his contract of sale that the buyer shall sell it after buying it, or the buyer stipulates for the seller that he shall buy it from him, the transaction shall not be valid, according to the more cautious opinion, in the same way as it is not permissible absolutely if he does so in order to save himself from Ribã’.
The prohibition of Ribä’ or usury is established by the Book (i.e. the Quran). Tradition (the Holy Prophet and the Imams) and consensus of the Muslims, rather it is not far from being one of the necessary injunctions of the Islamic faith. It is one of the great, atrocious sins. Its severity has come down in the Holy Book (i.e. the Holy Quran) and several Traditions (of the Holy Prophet and the Imams). It has come down about it in an authentic Tradition from Imam (Jafat) al Sadiq, Peace be upon him, that he has said:
“(Obtaining) a Dirham of Riba or usury is a more atrocious sin than committing incest seventy times.” It has also been related that the holy Prophet, Allah’s Blessing be on him and his Progeny, said in his Last Will to Ali, Peace be upon him, “O Ali, there are seventy parts of Riba’, the easiest (the lowest) is treated as heinous an offence as one’s marrying his own mother in the Holy House of Allah”. So also it has been reported from the Holy Prophet, Allah’s Blessing be on him and his Progeny that he has said: “Whoever eats Riba’, Allah shall fill his stomach with the Fire of Hell as much as he eats Riba’. If he makes any property with it, Allah shall not accept any of his (virtuous) acts. Allah and the Angels shall continue sending curse on him as long as even a Qirãt (the minimum quantity) of it is lying with him.” So also it has been related from the Holy Prophet, Allah’s Blessing be on him and his Progeny, (that he has said): “Allah has cursed the person who eats Ribã’, his agent, his scribe and both his witnesses.” Etc.
There are two kinds of Riba’: One relating to a Bargain, and the other relating to a Debt. The former is a sale of one of the identical commodities with another with something in excess, as the sale of one Maund of wheat with two Maunds of it or one Maund and a Dirham, or with different order such as one Maund in cash with one Maund on credit. According to the stronger opinion Ribã’ is not confined to sale only, but it is exercised in other transactions as well, as a conveyance or the like. There are following two conditions for it:
(Two Conditions for It)
First Condition: Both the things must be usually of the same kind. So everything that is treated as wheat, rice, dates or grapes in usual practice and is considered to be of the same kind cannot be sold with another of the same kind with something in excess, even if they differ in quality and properties. So the excess is not allowed in an exchange of red wheat of an inferior quality with white wheat of a superior quality, nor Ambar rice of superior quality with a Shambah rice of inferior quality, or Zãhidi dates of inferior quality with Khastah dates of superior quality, etc., that are usually considered to be of the same kind, contrary to what is not considered to be of the same kind, as wheat exchanged with lentil, in whose case there is no objection in addition in either of them.
Second Condition: The things exchanged must belong to the category of things that are measured or weighed, so that there shall be no Riba’ in the exchange of things that are sold by number or sight.
Problem # 1 As for Ribã’, barley and wheat are considered to be of identical kind, and so their exchange with some addition is not permissible, even if they are not usually considered to be of the same kind. As for Zakãt, the Nisãb of one of them cannot be completed with another. Does ‘Alas (a wheat-like grain of inferior quality used as food by the people of San’a, capital of Yemen) belong to the category of wheat or Sult (a grain soft as wheat and having the property of barley) to the category of barley? There is hesitation (in accepting them as wheat and barley respectively). It is more cautious that one of them must neither be sold in exchange for the other, nor either of them in exchange for wheat or barley, except that each of them must be exchanged with its own category.
Problem # 2 Everything with its original is treated as one category even if they differ in names, as sesame and its oil, milk and yoghurt, churned sour milk, beestings, etc., dates and grapes mixed with their vinegar and juice.
Similar is the case with the products with their original as yoghurt and cheese and dried yoghurt, etc.
Problem # 3 The meat, milk and animal fat differ with the different animals. An addition may be made with the meat of sheep and cow, as well as their milk and fat.
Problem # 4 In case of things that are measured or weighed, a product does not follow its original.
. . .
In case of things that are not measured or weighed, if something is produced from them that cannot be measured or weighed something can be added with it and its original.
Similar is the case with something that is produced out of something else. So there is no objection in adding something either to cotton and what is woven with it, or to two things woven with it, so that two cloths can be sold for one cloth.
Sometimes some things can be measured and weighed at one time while they cannot be measured or weighed at another time, as fruits on the trees and after plucking, or an animal before it is slaughtered and skinned, and after it. So it is allowed to sell two sheep for one sheep without any objection.
Of course, it is not allowed to sell the meat of an animal with a living animal of the same category, as the meat of goat for a sheep.
Its prohibition is not due to Riba’; rather it is not far from generalising the rule of prohibition to the sale of meet of animal with the animal of even another category, as meat of a goat for a cow.
Problem # 5 If something has the condition of being dry as well as moist, as fresh and dried dates and fresh grapes and raisins, and so also bread, as well as uncooked meat that becomes dry, so there is no objection in selling them in dry condition for another indry condition, or moist for moist, anything for another of similar condition, as it is not permissible to add anything to them.
As regards the sale of a dry one for a moist one, there is hesitation in its permissibility; the more cautious being non-permissibility, regardless whether they are with an addition or something for a similar one.
Problem # 6Superiority or inferiority in quality does not necessitate addition. So it is not allowed to sell one Mithqal of gold of superior quality for two Mithqals of gold of inferior quality, even if they are equal in price.
Problem # 7 Several ways for escape from Riba have been mentioned in books, and I have revised the issue, and have reached the conclusion that escape from Riba in one way or the other is not permissible, and what is permissible is the escape from similar things with an addition, as the sale of one Maund of wheat of equal price for two Maunds of barley or wheat of inferior quality. If one intends to get rid of sale of two similar things with something added to the defective one in order to escape from the prohibited one to the lawful one, in fact, this is not escaping from Ribä’. As regards escape from Riba it is not allowed by employing one device or the other.
Problem # 8 If something is sold and purchased without weight in one place and in another through weight, then each place shall be governed by its own rule.
Problem # 9 There is no Riba between a father and his son, nor between a husband and his wife, nor between a Muslim and a Harbi (a subject of a non-Muslim enemy country), in the sense that it is permissible for a Muslim to charge an excess (from a Harbi). It is also allowed between a Muslim and a Dhimmi (a non-Muslim subject of a Muslim state). This is the discussion regarding Riba in bargains. But as regards Ribä in debts, God willing, it shall follow.
The sale of Surf means the sale of gold for gold or silver, or the sale of silver for silver or gold. There is no difference whether the gold or silver is bullion or otherwise. If the thread made of silk and gold or silver is sold for another such thread, when the gold or silver used in it is placed against each other, it shall be called a sale of Surf. If it is placed against each other in two cloths (in which the gold or silver thread is used), then apparently it shall not be called a sale of Surf.
The same rule shall apply if one of them is sold. It is a condition that the possession of the object of sale and its price should take place at the spot, so that if it takes place on different occasions or the possession does not take place, the contract of sale shall be declared void. If the possession takes place partially, the part of which possession does not take place at the spot shall be declared void.
Similarly, if gold or silver is sold in a single transaction with something other than gold or silver, and total possession does not take place until the two parties to the contract separate from each other, the contract relating to gold or silver shall be declared void, while that relating to the other object shall remain valid.
Problem # 1 If both the parties leave together, the contract of sale shall not be void. So if both of them take possession of the object of sale and its price respectively, and then separate, the contract of sale shall be valid.
Problem # 2 The condition of mutual possession in case of gold or silver relates to the transaction of its sale, and not in other transactions, such as conveyance or gift with an exchange, etc.
Problem # 3 If the transaction takes place on promissory notes or the paper notes as usual in our times from one party or both parties, then apparently the rules of sale of Surf shall not apply to it, but at the same time excess shall not be permissible even if it is done to escape from Riba. If a person intends to give loan, and, in order to escape from Ribã, he sells the paper money with an excess, he shall be deemed to have committed a forbidden act, and the contract of sale shall also be declared void. If it is supposed that the transaction of gold or silver is valid and the money be in the form of commercial cheques, the sale of Surf shall take place and Ribä’ shall be established in such transaction. But such supposition may take place in such transactions in these days.
Nevertheless, the exchange of cheques shall not be sufficient in the mutual possession required in a sale of Surf
Problem # 4 Apparently for possession it is sufficient that the thing must be a liability of the party (required to give possession), and actual possession is not necessary. So if Zayd is liable to pay to ‘Amr Dirhams and he sells it in Dinars, and he takes their possession before they depart, it shall be a valid transaction. Rather, even if he authorizes Zayd to take possession from him, it shall be a valid bargain.
Problem # 5 If a person buys some Dirhams through sale of Surf, and then purchases with them some Dinars before taking possession of the Dirhams, the second transaction shall not be valid. If the mutual possession takes place before the parties depart, the first transactions shall be valid. If, however, they depart before the mutual possession take place, the first transaction shall also be declared void.
Problem # 6 If a person has to pay Dirhams to another person. Then if the latter says to the former: “Change the Dirhams into Dinars”, and the other party also agrees, and accepts the liability of changing the Dirhams into Dinars. If it was to authorize him as an agent in the sale of what he owed for something else, it shall be valid; otherwise, by his mere consent with the change and his acceptance, there shall be hesitation in the validity of the transaction, and it is far from being likely to be called a transaction other than sale.
Problem # 7 If counterfeit Dirhams and Dinars are current among the people, then if they have knowledge about it, it shall be permissible to spend and pay them and use them in a transaction; otherwise, it shall not be permissible except after declaring them to be counterfeit. It is more cautious to break them, even if they are not meant to be counterfeit.
Problem # 8 As gold and silver are things that admit of Ribä’, whenever any of them is sold for something of its own category, both the parties to the transaction, in order not to fall in Ribä’, must see that there is no excess. This is a matter which must be attached due importance by both the parties to a transaction particularly the exchange agents. This is why exchange agency is forbidden, as an exchange agent cannot be safe from Riba
Problem # 9 In an addition, the existence of some alloy in gold or silver is sufficient if it is of value when separated. So if silver containing some alloy is sold for something identical, it shall be permissible, even if sold with an addition, when the purpose is not to escape from Ribä’. If it is sold for pure silver, it is indispensable that there must be some excess so that the excess may be equal to the alloy. If the amount of alloy is not known, then it shall be sold for something belonging to another category, or for a quantity that is briefly known to be more than the amount of the alloy. The same is the case of the things ornamented with gold or silver or the like.
Problem # 10 If a person buys a definite amount of silver for identical silver or gold, but finds it to be of some other category, as copper or lead, the sale shall be declared void, and he shall not be entitled to demand a substitute, in the same way as the seller shall not be entitled to compel him to accept a substitute. If he finds part of it to be so, that much shall be invalid and the rest shall be valid. The buyer shall be entitled to revoke the contract of sale due to the defective one being part of it. The seller shall also be entitled to revoke it, provided that he was ignorant of the actual condition.
If a person buys silver owed entirely by another for gold or silver, and after its possession finds what is delivered to be totally or partially of some other category, then if he finds it before both the parties depart, then the seller shall have to replace it with the actual category, and the buyer shall be entitled to demand its substitute. If he finds it after the departure of both the parties, the sale shall be declared totally or partially void in the way explained before.
This is the case when the thing happens to be of a different category. But if it were of the same category, but some defect has come to light in it as the hardness of the substance or the alloy being more than usual, or the coin being counterfeit, or the like, then in the first case, when the object of sale is outwardly a definite amount of silver, the buyer shall be entitled either to return it entirely or retain it, but he shall not be entitled to return only the defective one if it is partially defective. But there is hesitation in accepting this rule, as mentioned under the Chapter on the Option of Defect. The buyer shall not be entitled to demand the indemnity if both the commodities were of the same category as silver for silver, in case of the substance being hard or the coin being counterfeit, according to the more cautious, if not stronger opinion, due to the application of Ribã’. If the commodities exchanged were of different categories, as silver for gold, the buyer shall be entitled to demand the indemnity before the departure (of both the parties). But after the departure, there is hesitation (in the application of the rule), particularly when the indemnity is to be paid in gold or silver. However, according to the stronger opinion, he shall be entitled to demand it, particularly when the object of sale was other than silver or gold.
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