Invalid and improper transactions Part 1


Economics, Part 5-Principles of Business / Monday, May 31st, 2010

1. A transaction which is not considered in the Sharî‘ah , which is regarded as useless,  and regarding which one will say that it is as if the person did not even purchase the item and the seller did not even sell it, is referred to as bâtil or invalid. The rule with regard to such a transaction is that the person who purchased the item does not become its owner and that it is still considered to be under the ownership of the seller. Therefore, it is not permissible for the buyer to consume it or to give it to anyone. It is not permissible for him to utilise it in any way.

As for the transaction which has taken place but some sort of shortcoming is found in it, is referred to as fâsid or improper. The rule with regard to such a transaction is that as long as the item does not come into the possession of the buyer, ownership of that item will not be transferred to him. Once he takes possession of it, it will come under his ownership but it is not halâl and tayyib . Therefore, it is not permissible for him to consume it or utilise it in any way. Instead, it is wajib to cancel or annul this transaction. If the person wishes to keep it, he must recommence the transaction and then purchase it. If the person did not cancel this transaction and instead, sold the item to someone else, he will be committing a sin.

However, it will be permissible for the second buyer to consume it or utilise it in any way and this second transaction will be valid. If the person sold it at a profit, it will be wâjib on him to give the profits in charity. It is not permissible for him to use it for his personal purposes.

2. The custom of selling the fish that is in the lakes or pools of landlords is a bâtil transaction. All the fish that are in these lakes and pools do not belong to anyone as long as they are not caught and fished out. The person who catches the fish becomes its owner. Once you have understood this aspect, now try and understand the following  :   if the landlords do not even own those fish, how can it be permissible for them to sell them? Obviously, if the landlord catches the fish himself and then sells it,  this will be permissible. If he asks someone else to catch the fish, that person will become its owner. The landlord has no right over the fish which has been caught by that person. In the same way, it is also not permissible for him to prevent people from fishing there.

3. Grass began growing on its own on a person’s land. He did not plant it nor did he irrigate it. This grass does not belong to anyone. Anyone can come and cut it and take it away. It is not permissible for the owner of the land to sell it nor is it permissible for him to stop anyone from cutting it. However, if the person irrigated it and put some work into it, it will come under his ownership. Now it will be permissible for him to sell it and to stop others from cutting it as well.

4. The young of an animal that is still in the stomach of the mother cannot be sold before it is born. Such a transaction is bâtil . However, it is permissible to sell the entire animal. But if the owner says  :    “I am selling this goat to you but the kid that is in its stomach belongs to me. Once it gives birth to that kid, you will have to give it to me”, then such a transaction is fâsid .

5. The milk that is still in the udders of an animal cannot be sold before it can be milked. Such a transaction is bâtil . The owner will have to milk the cow first and then sell the milk. Similarly, it is prohibited and bâtil to sell the wool that is on a sheep before it can be sheared.

6. It is not permissible to sell the timber, wood, etc. that is part of the house or roof before removing or digging these items out.

7. It is not permissible to sell the hair, bones, etc. of humans. Such a transaction is bâtil . It is also not permissible to utilise these things for one’s personal purposes.

8. Apart from pigs, the bones, hair and horns of dead animals are pure. It is permissible to use them and to sell them as well.

9. You purchased a goat or any other item for R5 from someone, took possession of it, took it home and had it tied. However, you did not pay for it as yet. Coincidentally, you are unable to pay for it or you decided not to keep it any longer. You therefore went to the person and said  :    “Take this goat back for R4 and I will give you R1 separately.” This selling and this taking away will not be permissible. As long as the person does not give him the full amount in cash, it will not be permissible to sell it to him for a lesser price.

10. A person sold his house on the condition that he will not hand it over immediately. Instead, he will stay in it for one month. Alternatively, he sold it on the condition that the buyer gives him a certain amount of money as a loan. Or a person purchased fabric on the condition that the person who is selling it must cut and sew it. Or he made the condition that he will purchase it on condition that it is delivered to his house. Or he made any other similar condition which is regarded as baseless and prohibited in the Sharî‘ah . In all these cases, the transaction will be fâsid .

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