بَابُ السَّلَمِ وَالرَّهْنِForward Sales and Pledges

¹ The statement: “They were advancing payments for fruits”: Meaning, they paid the price immediately and took the commodity later. This is stated in Al-Marqah. ² The statement: “With a known measure”: According to Abu Hanifah (may Allah have mercy on him), forward sales have seven conditions: a known type, such as saying wheat or barley; a known kind, such as saying irrigated or rain-fed; a known quality, such as saying good or inferior; a known quantity, such as saying twenty measures or two cubits; a known term, which Ash-Shafi‘i (may Allah have mercy on him) disputed; knowledge of the capital amount; and specifying the place of delivery, which Abu Yusuf and Muhammad disputed. These seven conditions are detailed in Al-Hidayah and other sources. In Fath Al-Qadir, it is stated: This hadith explicitly mentions the conditions of a known quantity and term, and the remaining five are established by implication due to the clear intent of precision to avoid disputes. ³ The statement: “A known term”: The Imams differed regarding immediate forward sales. Imam Ash-Shafi‘i permitted it, while Malik, Abu Hanifah, and others prohibited it. Those who permitted it said: The mention of a term in the hadith is not to require a term but means that if there is a term, it must be known. According to us, forward sales must be deferred. Our evidence is this hadith, as Allah mandated observing the term in forward sales, just as He mandated observing the quantity, indicating it is a condition like quantity. Also, it is a contract legislated only as a concession, as it involves selling what one does not possess. A concession in Shari‘ah is a change from the original ruling due to an excuse, leading to leniency. The concession in forward sales is changing the original prohibition of selling what one does not possess to permissibility due to the necessity of bankruptcy. In a state of availability and capability, it does not qualify as a concession, so the original strict ruling applies. This is summarized from Al-Bada’i‘.

¹ The statement: “Let him not divert it to something else”: For this reason, it is stated in Al-Hidayah: It is not permissible to dispose of the capital of a forward sale or the item advanced before possession. In Badhl Al-Majhud, Al-Khattabi said: If someone advances a dinar for a qafiz of wheat for a month and the term arrives but wheat is unavailable, Abu Hanifah held that it is not permissible to sell it in exchange for the dinar, but he returns the capital, based on the general and apparent meaning of the narration. According to Ash-Shafi‘i, it is permissible to buy a sa‘ with the dinar if they settle and take possession before parting, to avoid debt for debt. Before cancellation, it is not permissible, which is the meaning of the prohibition against diverting the advance to something else.

¹ The statement: “He prohibited”: For this reason, it is stated in Al-Hidayah: Forward sales for animals are not permissible. Ash-Shafi‘i said they are permissible.

¹ The statement: “The measure is the measure of the people of Madinah”: At-Tahawi said in Mushkil Al-Athar: We examined this hadith and found that Makkah had no produce or cultivation at that time, nor before it. Do you not see the saying of Ibrahim (peace be upon him): Our Lord, I have settled some of my descendants in an uncultivated valley (Ibrahim: 37)? It was a trading city where pilgrims brought goods, selling them for the prices of traded goods. Madinah was different, as it was a land of palm trees, and their livelihood came from its fruits. Charities entered it, and the obligatory charity was taken by measure. The Prophet (ﷺ) made all cities follow these two cities. People needed scales for the prices of what they bought and other transactions, for paying zakat, and other purposes, including what they advanced for measured items. The Sunnah prohibited advancing measured items for measured items or weighed items for weighed items but permitted advancing measured items for weighed items and weighed items for measured items. It prohibited selling weighed items for weighed items except in equal amounts and selling measured items for measured items except in equal amounts. The scale was based on what was used in Makkah, and the measure was that of the people of Madinah, unchanged. If people altered it to something contrary, they would return to the knowledge of measured items according to the measure of the people of Madinah and weighed items according to the scale of the people of Makkah at that time. Their rulings do not change or turn to their opposites. From this, Imam Abu Hanifah and his companions took that anything called a sealed measure, qafiz, mukuk, mud, or sa‘ is measured, and the rulings of measured items apply to it in all we described. Anything called a ratl or uqiyyah is weighed. This was narrated from them by Muhammad ibn Al-‘Abbas ibn Ar-Rabi‘ Al-Lu’lu’i from ‘Ali ibn Ma‘bad from Muhammad ibn Al-Hasan from Abu Yusuf from Abu Hanifah, with no disagreement among them reported.

¹ The statement: “The Messenger of Allah (ﷺ) bought”: In Sharh As-Sunnah, it is stated: This indicates the permissibility of buying on credit, pledging for a debt, pledging in residence, though the Book restricts it to travel, and transacting with the People of the Covenant, even if their wealth may involve usury or the price of wine. This is stated in Al-Marqah. ² The statement: “From a Jew”: This indicates the permissibility of transacting with disbelievers in matters where the prohibition of the transacted item is not confirmed, disregarding their corrupt beliefs and transactions among themselves. It also permits selling, pledging, leasing weapons, and other things to disbelievers who are not at war. This is stated in Umdat Al-Qari.

¹ The statement: “From Ash-Sha‘bi”: Ash-Sha‘bi says this, yet it is narrated from Abu Hurairah (may Allah be pleased with him) that the Prophet (ﷺ) said: “The mount may be ridden for its maintenance if pledged, and the milk of the livestock may be drunk for its maintenance if pledged.” It is possible that Abu Hurairah narrated this from the Prophet (ﷺ), yet Ash-Sha‘bi says the opposite without abrogation being established for him. If so, his opinion becomes questionable. If his opinion is questionable, so is his narration. If his reliability in narration is established, so is his reliability in not contradicting it. If one must be invalidated, so must the other. Those who argue against us with this hadith of Abu Hurairah say: The one who narrates a hadith from the Prophet (ﷺ) knows its interpretation best, so it aligns with their principle. They must say: Since Ash-Sha‘bi said what we mentioned, contradicting what is narrated from Abu Hurairah from the Prophet (ﷺ), it indicates its abrogation. This is stated in Sharh Ma‘ani Al-Athar. ² The statement: “Nothing may be benefited from a pledge”: Ibrahim An-Nakha‘i, Ash-Shafi‘i, and a group of Zahiris said: The pledger may ride the pledged item for its maintenance and drink its milk accordingly, citing the hadith of Abu Hurairah that the Prophet (ﷺ) said: “The mount may be ridden for its maintenance if pledged, and the milk of the livestock may be drunk for its maintenance if pledged.” Ath-Thawri, Abu Hanifah, Abu Yusuf, Muhammad, Malik, and Ahmad in one narration said: The pledger has no such right, as it contradicts the ruling of a pledge, which is permanent retention, so he does not own it. Thus, he may not benefit from the pledged item by use, riding, milk, dwelling, or otherwise, nor sell it to anyone other than the pledgee without his permission. If he sells it and it depends on the pledgee’s approval, it is valid if approved, and the price becomes the pledge, whether the pledgee stipulates it as pledged with him or not. Abu Yusuf said it is not a pledge unless stipulated. Likewise, the pledgee may not benefit from the pledged item, so if it is a slave, he does not employ him; if a mount, he does not ride it; if clothing, he does not wear it; if a house, he does not live in it; if a Qur’an, he does not read from it. He may not sell it except with the pledger’s permission. For this reason, Ash-Sha‘bi said: Nothing may be benefited from a pledge, meaning neither the pledgee nor the pledger. The ruling for the pledgee is mentioned in most texts. The ruling for the pledger is derived from consensus and attributed in Ghayat Al-Bayan to Al-Aqta‘, where it is stated: Our companions said: The pledger may not benefit from the pledge’s benefits except with the pledgee’s permission, nor dispose of it, contrary to Ash-Shafi‘i, except for intimacy with a slave girl or wearing clothing. At-Tahawi said in arguing for our companions: Scholars agreed that the maintenance of the pledge is on the pledger, not the pledgee, and the pledgee has no right to use the pledge. The hadith of Abu Hurairah, which Ash-Shafi‘i and others cited, is ambiguous, as it does not specify who rides or drinks. How can the opponent assume it is the pledger, not the pledgee, without evidence? It is not permissible to attribute it to either without proof. Hushaim narrated from Zakariya from Ash-Sha‘bi from Abu Hurairah that the Prophet (ﷺ) said: If the animal is pledged, its fodder is on the pledgee, and the milk of the livestock is drunk, and the one who drinks or rides bears its maintenance. This hadith indicates that the riding and drinking in the first hadith refer to the pledgee, not the pledger, so it is assigned to him, and the maintenance is in exchange for what is benefited. According to us, and Allah knows best, this was when usury was permissible, and loans yielding benefits or taking something unequal were not prohibited. Then usury was prohibited, and every loan yielding a benefit was forbidden. This is derived from Umdat Al-Qari and Fath Allah Al-Mu‘in. Abu Hanifah said: The benefits and increments of the pledged item are pledged. The cost of its preservation and housing, if it contributes to maintaining the pledged item, is on the pledger; otherwise, it is on the pledgee. This is stated in Al-‘Urf Ash-Shadhi. In Ad-Durr Al-Mukhtar, it is stated: Benefiting from it is not permissible at all, whether by use or dwelling, for either the pledgee or pledger, except with mutual permission. Some said it is not permissible for the pledgee as it is usury. Others said if it is stipulated, it is usury; otherwise, it is not. Ibn ‘Abidin narrated from ‘Abdullah ibn Muhammad, a prominent scholar of Samarkand, that it is not permissible for the pledgee to benefit even with the pledger’s permission, as it is permission for usury. Ibn ‘Abidin said: This contradicts the generally accepted view that it is permissible with permission, unless it is interpreted as a matter of piety, while the accepted view pertains to the ruling. Then I saw in Al-Kawkab Ad-Durri: This applies if the benefit is not stipulated in the pledge, and the custom of the pledgee benefiting is not prevalent, as what is customary is like what is stipulated. It involves two transactions in one, which is prohibited, and every loan yielding a benefit is forbidden.

¹ The statement: “The pledge includes what is in it”: The “ba” indicates exchange and compensation, as stated in Sa‘di Shalbi’s commentary on Al-‘Inayah. It means the pledge is guaranteed. If the pledgee takes possession and the pledged item perishes in his hand after possession, he guarantees the lesser of the pledge’s value or the debt. This is our view. Ash-Shafi‘i (may Allah have mercy on him) said the pledge is a trust in the pledgee’s hand, and nothing of the debt is waived if it perishes, citing: “The pledge is not withheld from its owner who pledged it; he benefits, and he bears its loss.” This hadith is disconnected, narrated by Ash-Shafi‘i and others as mursal, as the authentic version is from Sa‘id ibn Al-Musayyib’s mursal. Abu Dawud narrated it in his book, and only Ibn Abi Anisa connected it. Malik said: If it perishes due to an apparent cause, it is on the pledger’s guarantee; if due to a hidden cause, it is on the pledgee’s. Our evidence is the narration that a man pledged a horse, and it died, and they disputed before the Prophet (ﷺ), who said: “Your right is gone,” and in another narration: “The pledge includes what is in it,” and the consensus of the Companions that the pledge is guaranteed. This is derived from Al-Hidayah and Al-Marqah. In At-Ta‘liq Al-Mumajjad, regarding “The pledge is not withheld,” the author of An-Nihayah said: This was a saying of the people of ignorance that if the pledger did not repay by the specified time, the pledgee owned it. Islam invalidated this. Ash-Shafi‘i and a group of scholars used this hadith to argue that if the pledge perishes in the pledgee’s hand, the debt is not lost, and the pledger must pay the debt. At-Tahawi narrated in Sharh Ma‘ani Al-Athar that scholars interpreted it differently, citing Mughirah from Ibrahim about a man who gave a pledge for a term and took dirhams, saying: If I bring your right by such time, otherwise the pledge is yours for your right. Tawus, Sa‘id ibn Al-Musayyib, and Malik narrated similarly, indicating that the withholding in the hadith refers to withholding by sale, not loss. Muhammad said in his Muwatta, interpreting “The pledge is not withheld”: A man would pledge to another, saying: If I bring your money by such time, otherwise the pledge is yours for your money. The Messenger of Allah (ﷺ) said: “The pledge is not withheld,” nor is it the pledgee’s for his money. We say the same, as does Abu Hanifah, and Malik ibn Anas interpreted it similarly. In Al-Hidayah, it is stated: The meaning of “The pledge is not withheld” is complete retention by becoming owned, as Al-Karkhi reported from the predecessors. The discussion on this issue is lengthy; whoever wishes to explore it should refer to Sharh Ma‘ani Al-Athar.