The following is a translation from the Arabic book ‘Mashroo’ Qaanoon Al-Buyoo’ Fee Dawlah Al-Islaamiyah’, first edition by Ziyaad Ghazlaan.
Article 1:
Al-Bai’u (trade): The exchange of the property with property so as to take ownership (Tamalluk) and (Tamleek) possession (Al-Mughni 560/30)
Many Aayaat of the Qur’aan have come indicating the legality of trade and from amongst these Aayaat, is the speech of Allah Ta’Aalaa:
Allah has permitted trading and forbidden Ribaa (usury). (Al-Baqarah 275)
And His (swt) speech:
Unless it is a trade by mutual consent between you. (An-Nisaa 29)
And His (swt) speech:
Take witnesses whenever you make a commercial contract (between yourselves) (Al-Baqarah 282)
Similarly there are numerous Ahaadeeth that indicate the legality (legitimacy) of Al-Bai’u (trade). From amongst these is the statement of the Messenger of Allah (saw): “The traders (seller and the buyer) have the right to keep or return goods as long as they have not parted ways and if both the parties spoke the truth and described (i.e. the defects and qualities of the goods), then they would be blessed in their transaction, and if they told lies or hid something, then the blessings of their transaction would be lost.” (Al-Bukhaari).
And the Hadeeth: “It was asked: O Messenger of Allah which earning is the best? He (saw) said: The work of the man done by his hand and ever Bai’u Mabroor (acceptable legitimate trade).” (Al-Albaani said it is Saheeh Li Ghairihi in his ‘Saheeh At-Targheeb and At-Tarheeb).
And Ismaa’eel Bin ‘Ubaid Bin Rifaa’ah related from his father from his grandfather that he went out with the Nabi (saw) to the Muslallaa (place of prayer) and he (saw) saw the people engaged in trade amongst themselves and then said: “O traders gathered here, respond to the Messenger of Allah (saw). They (then) raised their necks and sight towards him and he said: Verily the traders will be raised on the day of Qiyaamah (judgment) as Fujjaar (transgressors) except those who feared Allah (had Taqwaa), were righteous and truthful (honest).” (Al-Bukhaari).
Ibn Hajar said: [The Muslims hold a consensus in regards to the permissibility of Al-Bai’u (trade) and Al-Hikmah (wisdom) necessitates it, because the satisfaction of the human need is connected to that which is in the hand (possession) of his companion in most cases and his companion may not dispense of it unless there is compensation. As such, the legality (legitimacy) of trade allows the purpose to be fulfilled without (causing) hardship (Haraj)] (Fath-ul-Baari 336/4).
Article 2:
The Eejaab (Offer) and the Qubool (Acceptance) occurs with every worded expression (Lafzh), action (‘Amal) or indication (Ishaarah) that indicates them in a clear meaning (Dalaalah Waadihah).
Al-Eejaab linguistically means Al-Ilzaam (compulsion): It is said that the Bai’u (trade) has obligated in an obligatory manner (Wajaba) or it made it obligatory (Awjaba) meaning that it has necessitated (Lazima) or made compulsory (Alzama).
And the Eejaab is that which originates from the direction of the Baa’i (seller) and it indicates his consent to the trade whether or not he originated it first. The Qubool originates from the direction of the Mushtari (the buyer) and it indicates his consent to the trade whether it came from him first or second. And the Eejaab and the Qubool occurs with every phrase (Lafzh) or action that indicates their occurrence in a clear meaning (Dalaalah Waadihah) and the evidence for this is His (swt) Qawl (statement):
Allah has permitted trading and forbidden Ribaa (usury). (Al-Baqarah 275)
The Bai’u (trade) has come in a general (‘Aamm) manner without Takhsees (specification) in terms of a specific Lafzh (worded expression) or action and this also appears in His (swt) statement:
Unless it is a trade by mutual consent between you. (An-Nisaa 29)
So the Aayah did not stipulate in the Tijaarah (trade) other than Taraadin (mutual consent) and it did not stipulate a specific statement or action. It has been narrated from the Messenger of Allah (saw) that he said: “If two men are conducting trade then each of them has a choice (i.e. to walk away) as long as they have not separated from each other and they are still together”.
So the evidential point in the Hadeeth is that the Messenger of Allah (saw) made the Bai’u (trade) Laazim (binding) with the mere mutual consent and separation of the bodies (people involved) without specifying a specific worded expression or action.
Imaam Maalik said: [ The ‘Uqood (contracts) are Saheeh by everything that indicates what is intended in it in terms of a statement or action and there is no specific stipulated text (Nass) in the Eejaab and Qubool and this is because that which is intended (aimed at) is the meaning that mutual consent has occurred and this occurs by the (mere) pursuit or practice (of trade) and what is similar to this]. (Al-Mughni 4/4).
And Ibn Taymiyyah said: [And it is known (Ma’loom) that the Bai’u (trade), Ijaarah (renting), Al-hibbah (gifting) and the like have not been specified by the Shaari’ (legislator) with a specific specification and this has not been found in the Kitaab (book) of Allah or the Sunnah of the Messenger of Allah (saw). And it has not been transmitted from any of the Sahaabah or Taabi’een that they specified for the ‘Uqood (contracts) a specific description in terms of worded phrases (Alfaazh) or other than this. Nor have they said anything that indicated that contracts are not contracted unless it is done with a specific form. Rather it is said that this view is contrary to the old Ijmaa’ (consensus) and that it is a Bid’a (innovation). And due to this there is no linguistic specification where it is said that the people of language call this trade but do not call this trade (i.e. differentiate) unless one of them begins with the address of Allah and the other doesn’t. Rather the naming of the contracting matters as Bai’u (trade) by the people of custom (Ahl-ul-‘Urf) is an evidence that it is called Bai’u in their language. And the original position is to stick to the language and approve it and not to transform it and change it so when no specification (limit) has been given by the Shar’a or in the language then the reference for it returns to the ‘Urf (tradition) and their ‘Aadaat (customs) and as such whatever they call Bai’u is Bai’u (trade)] (Kutub wa Rasaa’il wa Fataawaa Ibn Taymiyyah Part 29 p16).
So the Shar’a (Islaamic legislation) has not established a specific Lafzh (worded expression) or action for the offer and acceptance (Eejaab wa Qubool) and has obligated returning to the ‘Urf (custom) so that which the people considered to be trade was trade like the Qabd (taking possession), Harz (acquisition) and other than these two.
Ibn Qudaamah said: [We have (the knowledge) that Allah made Al-Bai’u Halaal and he did not explain how it should be done and therefore it is obligatory to return to the ‘Urf (customs) (as a reference) just as it was returned to for the Qabd (taking possession) and Ihraaz (acquisition) and the Tafarruq (separation) and to the way the Muslims conducted trade in their markets upon that. And because the trade was present amongst them and known to them and the Shar’aa suspended the Ahkaam upon it and left it as it was and as such it is not permitted to change it by way of Ra’i (opinion) and At-Tahakkum (controlling)] (Al-Mughni 4/4).
Article 3:
The following is stipulated in regards to connecting the Eejaab (offer) to the Qubool (acceptance):
1) That the offer is equal to the acceptance in regards to the Miqdaar (quantity/measurement), Wasf (description), Ajal (timing) and other than these.
2) That the offer and acceptance come together (make connection) in the Majlis Al-‘Aqd (The sitting/place of contraction).
3) That the Alfaazh (worded expressions) and actions clearly indicate the offer and acceptance and are used either linguistically or by custom in the trade.
The agreement of the Eejaab (offer) with the Qubool (acceptance) is a fundamental (Asaasi) Shart (Condition) for the occurrence of mutual consent (Taraadin) because the Messenger of Allah (saw) said: “Indeed trade is only by Taraadin (Mutual consent”. As such if the Eejaab in not on par (equal to) the Qubool in any part of the contract (‘Aqd) of the Bai’u (trade) then this indicates the absence of Taraadin (mutual consent) and additionally it leads to dispute.
An-Nawawi said: [The agreement of the Eejaab and the Qubool is stipulated so if it was said: ‘I sold it for 1000 and it was replied: I accept for 1000’ or the other way round (i.e. starting with the purchaser’s offer) then this is Saheeh (correct). However if it was said: ‘I sell you all of the clothes for 1000’ and it was replied: ‘I accept half of them for 500’ then in this case it would not be Saheeh] (Raudat-ut-Taalibeen 340/3).
As for the connecting of the offer and the acceptance in the Majlis Al-‘Aqd (the place/sitting for the contract) then this is from the statement of the Messenger of Allah (saw): “Two traders (the buyer and seller) do not separate from a trade except by way of Taraadin (mutual consent)” (Musnad Al-Imaam Ahmad and its Isnaad was verified as Saheeh by Ash-Sheikh Shu’aib Al-Arnaa’oot in his commentary of the Musnad).
And the absence of the connecting of the offer with the acceptance is a separation based on other than Taraadin (mutual consent). The Ittisaal (connection) takes place in one place if the Baa’i (seller) and Mushtari (purchaser) are both present together or in a place if the missing person knows to accept when they are in two different places.
It is necessary that the Alfaazh (wordings) and A’amaal (actions) whether by language or custom indicate the Taraadin (mutual consent) and that these are used in the trade so that dispute does not arise. As-Sarkhasi said: [The ‘Aqd (contract) has been contracted by Dalaalah (indication) just as it is contracted by Tasreeh (public/clear statement) (Al-Mabsoot 150/11).
