Make trial of orphans until they reach the age of marriage; if then ye find sound judgment in them, release their property to them; but consume it not wastefully, nor in haste against their growing up. If the guardian is well-off, let him claim no remuneration, but if he is poor, let him have for himself what is just and reasonable. When ye release their property to them, take witnesses in their presence: but all-sufficient is Allah in taking account. (An-Nisa: 6)This is done by giving them freedom of action in selling and buying to test their abilities in doing this. If they prove to be competent, then they should be given the authority to conduct sales with the permission of their guardians. (Al Mughni Vol.4 pp.6)Third: the object of sale should be property or a kind of money which carries a legal benefit and which not needed by the seller.Fourth: the object of sale should be owned by the seller or he should have permission by the owner to sell it. If he sells something owned by somebody else without opinion, such a sale would be valid if the owner gave his belated consent; if he did not, the sale would be void. This is the opinion of Malek and Ishaq. Abu Hanifa said this would be correct in sales; however, in purchases the buyer has the right to do it and take the benefit in any case. They provide as proof the hadith narrated by 'Orwah ibn al Ja'd al Bariqi in which he reports that the Prophet (PBUH) gave him a dinar to buy a sheep; he bought two sheep with it, and then on his way back, he sold one of the sheep for one dinar. He came back to the Prophet (PBUH) with the sheep and the dinar, and the Prophet (PBUH) said, "May God bless the deal of your hand." This hadith was narrated by ibn Majah.Fifth: the object of sale should be capable of being delivered or handed over. If the seller cannot do that, the sale is nugatory. Thus it is invalid to sell a fugitive slave, or a bird in the sky or fish in the water.An extorted or usurped property could be bought from the usurper or from someone who can extract it from him. If fish were isolated in specified water and the seller could lay hand on them, the sale is correct. (Al Mughni Vol.4 pp.24)Sixth: the object of sale should be made known to the purchaser by sight or by ample description. The sale is invalid if the sold object is not seen by the buyer or if it was not described to him; also, it is incorrect if he sees the object but does not know its reality, or if the description was not sufficient in salam (delayed) sales. Another opinion is that it would be valid, and the buyer has the option of breaking the contract after seeing the object. This condition aims to protect the buyer and safeguard his interests and prevent the seller from cheating and commuting fraud. More discussion will come later in explaining the options of the buyer and the cases where option is considered legal.Seventh: The price should be made known to the two parties. By analogy to the capital of delayed selling, if the price of the merchandise was unknown to either parties or either one of them, the sale would be invalid due to (gharar) ignorance. Thus anything leading to ignorance and deceit in sales renders the sale nugatory. This is to safeguard the interests of both parties from falling into conflict and dispute.The conditions pertaining to capacity as mentioned earlier are applicable in such transactions.Islamically Prohibited SalesWe have seen that sales considered legal in general and in principle. However, Islamic law prohibits certain kinds of sale for various reasons which go back to: capacity of the parties, the format of the contract, and some legal description or the subject of the contract. Following is a brief explanation of these:1. Sale by coercion: If a person is forced to conduct a sale, the sale is considered invalid. However, according to Hanafi scholars, the sale is dependent on the seller's belated consent. If he gives his belated consent after coercion is removed, the sale is considered valid. Maleki scholars state that this sale is not binding and the seller, after removing coercion, is free to cancel or confirm the sale as he wishes. Shafe' i and Hanbali scholars view that form of sale as invalid.2. Sale by an insane person: By agreement among all scholars, a sale conducted by an insane person is considered nugatory for lack of capacity. By analogy, sales conducted by a drunken or drugged person are also in valid.3. Sale to a blind person: However, most jurists agree that if ample description of the sold object is given to the blind person, the sale is valid. However, Shafe' i scholars consider it in valid due to the blind person's inability to realize fully the nature of the sold4. Sale by a child: If the child is not discerning or capable of reasoning, the sale is invalid according to the consensus of scholars. However, if the child is discerning and able to distinguish things, then there are different opinions among jurisprudents. Shafe'i scholars say it is invalid due to incapacity. Hanafi, Maleki and Hanbali scholars state that the sale is suspended on the guardian's permission. This is in accordance with the Qur'anic statement that orphan children should be put to the test before they are given their money. (See Al Nisa': 6 mentioned earlier)...5. Sale by a person under fear and compulsion: This means a person who is under compulsion to sell his property who has the sale is nugatory according to Hanbali scholars and illegal according to Hanafis.6. Sale by an officious person: This means a person who concludes a contract concerning something which he does not own without authorization from the owner. In this case Malekis and Hanafis consider the sale valid but suspended on the owner's belated permission; if he gives it, the contract is valid. They consider a belated consent as effective as the one which recedes conclusion of a contract. However, Shafeis and Hanbalis consider the sale invalid in origin due to the Prophet's interdiction against selling something which is not owned by the seller: "Do not sell something which you do not own." This interdiction means that such a sale is' illegal.7. Sale by a person under interdiction: If interdiction is due to illness or insanity, then the person is non compos mentis and the case falls under insanity. If the interdiction is due to stupidity or a tendency to squander one's money, then the sale is suspended on the guardian's permission; if he permits, the contract is confirmed; otherwise it is void. The sale by someone put under interdiction due to bankruptcy is suspended on permission by creditors. If they permit it, the sale is confirmed; otherwise, it is void.8. Sale by a dumb person: If a dumb person cannot make a legible signal, his sale is in valid. If he can make a legible signal or can write, his sale is valid.9. Sale by correspondence or through an intermediary: This kind is widespread nowadays due to facilitated communications. If a message arrives and is answered positively by sender, the sale is correct. If it contains a stipulated time and the answer arrives after the lapse of that time, the sale is in valid. The setting of the contract mentioned in jurisprudential rulings would be the place and time of the arrival of the message of the first party. A contract conducted by an authorized intermediary is valid by agreement among jurisprudents. However, if this intermediary exceeds his appointment and authority, then the contract depends on be lated permission by the sender-authorizer. If he gives his permission, the contract is con firmed; otherwise, it is void.10. Sale of mu'atat (exchange): This and the differences of opinions on it have been discussed above.11. Sale without proper matching between proposal and acceptance: This is like when the seller says, "I sold you this merchandise for twenty" And the buyer says, "I bought it for ten."12. Sale by nasi'ah (postponed credit): This kind is called sale of kale' (postponed credit) by kale'; and this sale is nugatory by general consent among jurisprudents.13. Sale of non-existent, or near non-existent things: Examples of this kind of sale are sale of madamin (offspring to come of males), sale of malaqih (offspring to come of females) and sale of habal al habalah (offspring of off spring to come). Jurisprudents are all agreed on that these three kinds of sale are nugatory.14. Sale of things which cannot be delivered: like fish in the sea and birds in the sky. This kind of sale is nugatory by agreement of all jurisprudents also.15. Sale of gharar (involving ignorance): This means something which cannot be defined or specified. This is the reason why it was prohibited in Islam. An example of this is selling a car for the "current price;" while the current price is not defined.16. Two sale proposals in one: This is to sell one specific thing for one of two different prices, like when the seller says, "I sold you this for one hundred in cash or for two hundred in postponed payment" Nevertheless, sale is confirmed at one of the two prices. Or to sell one of two objects for a specified price, like saying, "I sold you one of these two garments for such and such a price." Nevertheless, the sale is confirmed for one of the two garments. Moreover, there were kinds of sales which were known in pre-Islamic times in Arabia, and which were prohibited in Islam. From them we mention the following:17. Sale of munabadha (shedding): This occurs in the two persons' shedding their garments in exchange, and sale is confined in that18. Sale of hasa (pebbles): This occurs when one of the persons throws a pebble which he has in his hand and wherever it falls, sale is confined for that amount only.19. Sale of mulamasah (touch): This occurs when one of the persons stipulates that if he touches the garment, the sale is confined, even if he is not fully aware of its qualities.20. Sale of an unknown object at unknown terms: This is a sale of an unknown object where the price or the time is unknown or unspecified. This kind of sale is nugatory according to most jurisprudents and illegal according to Hanafi scholars21. Sale of impurity (unclean things): Things considered unclean in Islam like wine, pork, dead animal meat and blood.22. Sale of water: Most jurisprudents agree that sale of water is permitted if it is privately owned. Like the water of a privately owned fountain or well. However, Dhaheri scholars state that sale of water is prohibited in the absolute. Moreover, there is unanimity among all scholars that sale of common public water is prohibited. This is because it (along with herbage and salt) is public property.23. Sale of something before receiving the price: This applies when the object is transportable according to Hanafi scholars. How ever, if it is an estate, the sale is correct because an estate is safe from changes. Shafe'i scholars rule that this kind of sale is prohibited regardless of whether the sold object is transportable or not because the Prophet (PBUH) has interdicted sale of merchandise until it is carried or taken by merchants to their possessions. Maleki scholars consider this interdiction to be specific to foodstuff if it is weighed, measured or counted. This is because the Prophet (PBUH) said, "If you have bought foodstuff, do not sell it until you have received it in full." This hadith was narrated by Ahmad and Muslim from laber's narration.24. Sale with a handsel payment: This kind sale is prohibited in Islam according to most jurisprudents because it was interdicted in sunnah. The Malekis and the Shafe' is state that it is nugatory if the seller makes the provision not to return handsel money to the buyer in case the sale was not concluded. If such a condition is not made, then the sale is correct. Hanbali scholars state that this kind of sale is permitted because it was permitted by the Prophet (PBUH).
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