Author: Allamah Sayyid Muhammad Husayn at-Tabataba\’i
The Bay\’ (Selling)
What is bay\’? The bay\’ (selling) means the sale and exchange of a property with another property in a way that the owner, who is ,called \”the seller\” of the merchandise transfers the ownership of his property to the other party in exchange for money, and the other party called \”the buyer\” pays the money to the seller in exchange for the merchandise.
As is evident, the bay\’ is considered as one of the \’uqud (contracts) and requires two parties (the seller and the buyer) for implementation. Thus those, who enter into the \’uqud, must fulfil the general conditions of the\’uqud such as maturity, wisdom, niyyah, and authority.
The Irrevocability of Bay\’
The bay\’ is an irrevocable \’aqd, i.e., it cannot be revoked by either of the contracting parties (seller or buyer) after the conclusion of the contract.
In view of the fact that sometimes the seller or the buyer is cheated due to his negligence or default and sustains a considerable loss and because in such instances the irrevocability of the contract is against the public interest, Islamic laws have enjoined the following two commands to take care of this sedition:
(i) Faskh al-\’aqd (cancellation of contract): When one of the parties of the contract changes his decision and requests the revocation of the transaction, it is mustahabb for the other party to accept his request for the cancellation of the contract.
(ii) Khiyar al-\’aqd (option for the contract). It is a special option or a right which the dealer can exercise to cancel the contract.
The important khiyarat (options) are as follows:
(i) Khiyar al-majlis (option during the meeting): Both parties reserve the right to cancel the transaction before they disperse.
(ii) Khiyar al-ghabn (option in the case of cheating): It means that when one of the parties to the contract is cheated and has suffered a loss in the transaction, for example, if the merchandise is sold at lower than its actual price or purchased at higher than its actual price, in this case the one who has been cheated has an option to cancel the contract.
(iii) Khiyar al-\’ayb (option in the case of defect): If after the completion of the transaction, the buyer finds out that the merchandise is defective, he can either cancel the transaction or demand the difference in price (difference in price of defect less and of defective merchandise).
(iv) Khiyar al-hayawan (option in the case of animals): With respect to the option in the case of animals such as sheep and horses, the buyer has the option to cancel the contract within three days.
(v) Khiyar al-shart: (option of condition): If the seller or the buyer or both have agreed upon certain terms and conditions in their transaction, they can revoke the transaction if the previously stipulated terms have been violated.
The Bay’ on Cash, On Credit, and on Advance Payment
The bay\’ is of four kinds depending on the payment of money and the delivery of the goods:
(i) The bay\’ on cash: If the commodity and its price in money is exchanged right after the contract for transaction is finalized, it is called the bay\’ on cash.
(ii) The bay\’ on credit: In the credit transaction, the commodity is delivered to the buyer at the time of transaction, but the payment of the price of the commodity is deferred by the buyer.
(iii) The bay\’ on advance payment: In this type of transaction, unlike the second type, the money is paid in cash by the buyer, but the delivery of the commodity by the seller is postponed.
(iv) The bay\’ on deferred payment and delivery. Unlike the bay\’ on cash, in this type of transaction, both the delivery of the commodity by the seller and the payment of money by the buyer are deferred to a later time.
The first three kinds of bay\’ are correct, but the fourth kind of bay\’ is batil.
The importance of confession: The role of confession in re-establishing people\’s rights which are being trampled upon and are not being taken care of in a society is self-evident, because an action – which is taken by the judicial organizations after a great deal of efforts and pains, collecting evidence, calling the people to witness as well as after depending on guess and conjectures – can be substituted by confession in the easiest and most clear way with only a few words.
In Islam, the confession has a great importance from a personal point of view as well, because it originates from an instinct which Islam has perfectly endeavored to revive and employ and that is the human instinct of admiring the right which is exactly the opposite of sensuality.
In His words, the Almighty Allah addresses those who believe in Islam: \”O you who believe! be maintainers of justice, bearers of witness for Allah\’s sake, though it may be against your own selves or (your) parents or near relatives…(4:135).\”
The Holy Prophet (S) states: \”Tell the truth, though it may be against your own interests.\”
The meaning and conditions of confession: In Islamic terms, the confession is a statement that substantiates the rights of others on the confessor, for example, one who confesses might say: \”I owe one thousand Rials to such and such a person.\”
The confessor must be mature and sane. He should confess out of his own free will. Thus the confessions of a child, an insane person, an intoxicated person, an unconscious person, a person who is asleep, and the one who is forced to confess are not correct and valid.
Eatables and Drinkables
In the holy religion of Islam, anything which could be eaten and drunk is known as \”halal\” except a few of them, some of which are mentioned in the Holy Qur\’an and some others in the ahadith of the Holy Prophet (S).
The exceptional cases of haram eatables and drinkables are limited to two types: animate or animals and inanimate or soulless.
First Type: Animals
Animals are of three types: aquatic animals, land animals, and birds: Aquatic animals: From among animals living in water only aquatic birds and fish with scales are halal to eat. The other aquatic animals such as eel, dogfish, tortoise, seal, porpoise, and the like are haram to eat.
Land animals: These animals are classified into two groups: domestic and wild.
The meat of domestic animals such as sheep, goat, cow, and camel is halalfor eating. The meat of horses, mules, and donkeys is also halal, but eating their meat is makruh. A part from these, other domestic animals\’ meat such as of dogs and cats is haram.
Among wild animals, cows, rams, wild goats, zebra, and dear are halal; however, the remaining wild animals that are beasts or that have talons such as lion, leopard, wolf, fox, jackal, and rabbits are haram to eat.
Birds: The meat of the birds that have maws and gizzards or that flap their wings while flying but do not have talons such as hens, pigeons or doves, turtledove, and francolin are halal to eat, but the meat of the rest of the birds is haram for eating. Some special species of locusts or grasshoppers are lawful (for further detail, one should refer to al-risalat al-\’amaliyyah.).
Note: The halal meat of the above-mentioned animals and birds depends upon their tadhkiyah (slaughtering animals according to Islamic Shari\’ah), i.e., they should be slaughtered according to the Islamic method as explained in al-risalat al-\’amaliyyah.
Second Type: Inanimate Objects
There are two kinds of soulless or inanimate objects: solids and liquids.
(a) The carcass: The carcass of any animal, whether its meat is halal orharam, is haram for eating. Also najis objects such as the excreta of animals whose meat is haram to eat, as well as those eatables which have become najis through contact with najis objects, are haram to eat.
(c) Fatal poisons
(d) Objects which are repugnant to man such as the excreta of animals whose meat is halal to eat, their nasal mucus, and anything found in their intestines are haram. Similarly, fifteen parts and organs of animals, whose meat is halal to eat, are haram for eating (for further details, one may refer to al-risalat al-\’amaliyyah).
(a) Any type of intoxicating drink is haram for drinking, even in a small quantity.
(b) The milk of animals, whose meats are haram to eat, such as of pigs, cats, and dogs is haram to drink.
(c) The blood of any animal whose blood gushes out (when its blood vessel is cut.).
(d) Najis liquids such as the urine and semen of any animal whose blood gushes out (when its blood vessel is cut).
(e) Liquids in which one of the najis things is mixed.
Note: The haram eatables and drinkables are haram when there is noidtirar (emergency or compulsion). In cases of idtirar (such as the health conditions of a person who will die of hunger if he does not eat haram food, or one who is afraid of illness or its aggravation, or one who, due to the intensity of his weakness, would fall behind his fellow-travellers and would die), one is authorized to have haram eatables and drinkables only as much as is necessary to remove his idtirar. This does not hold good in the case of a person who leaves his country for the purpose of robbery or rebellion against the Islamic government and faces an idtirar in the course of his journey.
Personal hygiene is one of the primary duties of man. Every individual can easily realize its importance with his Allah-granted commonsense.
The effects of various kinds of eatables and drinkables in maintaining personal health are very clear and evident. Furthermore, these have noteworthy effects on the morale and ethics of man, as well as in his social associations. There is no doubt at all that the mental conditions of a drunken person are not like those of a sober one and that their social behaviours are not identical. Or for example, if someone becomes accustomed to eating and drinking disgusting things, he will naturally produce an effect on his personal and social life and this effect is intolerable for common men.
Therefore, with his Allah-granted nature, man realizes that he must observe certain limitations in eating food. He should not eat each eatable or drink each drinkable. The Almighty Allah Who, according to His explicit wording in the Holy Qur\’an, has created everything that is on the earth for man, Who Himself is not in need of man and the means of his life, and Who is All-Knowing and All-Seeing than others concerning the good and the bad of His creatures has declared some of the eatables and drinkables halal and some others haram for the benefit and prosperity of man.
Al-\’Imam \’Ali al-Ridha’ (as) has stated: \”Allah has not declared any eatable or drinkable halal, unless it is to the benefit and for the welfare of man, neither has He declared any haram, unless it is the source of man\’s detriment, death, and corruption.\”
The philosophy behind forbidding some of these haram eatables and drinkables is quite clear for those who have a pure understanding. The detriment caused by. Some of them and the reason for their being haramhave been gradually revealed to us through scientific investigations. Regarding haram eatables and drinkables whose philosophy for being haram has not yet become available to us, it cannot be said that these philosophies will never become clear to us.
Even if their philosophies do not become clear to us, it cannot be said that they are actually devoid of any wisdom and expediency. But since these policies originate from the Holy Presence of an Infinite Knowledge, it can positively be said that these contain the best and most effective wisdom and expediency, even though we may fall short of understanding them due to our narrowmindedness and the limitations of our scientific means and equipment.
The Ghasb (Usurpation)
Taking the property of another person and owning it without any legitimate reason of possession and forcibly occupying the property of another person in order to benefit from its profits without the intention of legally claiming it as one\’s own property is called ghasb (usurpation) according to Islamic Shari\’ah.
Thus, the ghasb means exercising control over the property of others without having any legitimate means of control such as bay\’, rent, or permission.
It becomes quite clear that the ghasb is an indecent act which violates the very principle of ownership. .lust as the principle of ownership plays an effective role in t he establishment and survival of the society, the ghasb ruins and brings the society to a standstill.
Possession of a property and ownership will become invalid if the influential people of a society decide to gain control over the produce and output of the labor of the weak and the subordinates. Thus the idea of the transgression of the influential people over the personal rights of the helpless people would become predominant in the society. Consequently, in this situation, the subordinates and the weak will embark on any kind of submission, dishonor, and disrespect in order to benefit from the output of their efforts and endeavors. Thus the human society will be converted into a market in which the slaves are bought and sold and the laws and policies of the society will become entirely invalid and will be replaced by coercion and oppression.
This is why Islam has formulated strict policies for the usurper and considers usurpation a mortal sin.
According to the explicit wording of the Holy Qur\’an and ahadith, any kind of sins other than shirk may be forgiven by Allah and any kind of sins including shirk may be forgiven after tawbah (repentance), but whoever has a record of usurpation and infringement upon the rights of the people, will never have any hope for salvation from being called to account by Allah and from the remuneration of his deed without being forgiven by the persons who possessed these properties and rights.
Some of the Precepts Concerning Ghasb
(i) It is wajib for the usurper to immediately give back the usurped property to its original owner. If the owner is not alive, the usurper must deliver the usurped property to his heirs, even if doing so may be a heavy loss for the usurper. For instance, if one forcibly seizes the stones or pieces of iron belonging to someone else and uses them in the foundation of a building worth hundreds of thousand times more than the stones and the iron, he should excavate the foundation and pull out the usurped stones and iron to give them back to the original owner, unless the owner agrees to accept the price of the commodity. As another example, if one usurps ten manns (each mann is of three kilograms) of wheat and mixes it with ten kharvars (each kharvar consists of one hundred manns) of barley, he should pick out all the wheat from the barley and return it to its original owner, unless he accepts to take the price of wheat.
(ii) If any defect develops in the usurped property, the usurper must not only return it to its owner exactly as it was on his usurpation, but he must also indemnify for its losses.
(iii) If the usurped property is lost, the usurper must pay its price to the rightful owner.
(iv) If the usurper squanders a part of the profits of the usurped property without using it himself, he will be responsible for the said profit. For instance, if a person who usurps the rental car of another person and puts it out of commission for a few days, he would be responsible for the loss incurred.
If the usurper gains profit from the usurped property, for example, if he nourishes a usurped sheep with good fodder, so that it becomes fat, he will have no rightful claims over the profit rendered by the sale of the sheep. If the benefits accruing from the usurped property are separable, for instance, cultivating a usurped land, one should give the usurped property along with its rent back to the original owner of the land, but the crop belongs to the usurper.
The Shuf\’ah (Preemption)
If two persons own a house or another landed property as a musha\’ (joint ownership) and one of the partners decides to sell his share to a third party, the other partner has the right to buy his partner\’s share by the same contract agreed upon and exactly at the same price set for the third party. This right is called the right of shuf\’ah (preemption).
It is quite clear that the right of shuf\’ah has been devised in Islam to adjust and to stabilize partnerships and to eliminate losses and other mischief resulting from partnership of properties, for in many cases, the possession of the property by the new partner inflicts losses on the partner having the right of shuf\’ah or serves as the source of a series of conflicts and disagreements due to differences of opinion or it may be that freedom of ownership may have benefits for the one who has the right of shuf\’ah without causing any loss for the partner who wants to sell his share. The right of shuf\’ah holds good for lands, houses, gardens, and other immovable properties, but it does not apply to movable properties.
Re-Cultivation of Barren Lands
The term applies to the cultivation of a land which is not used (Whether it has never been cultivated before or it has been cultivated at a time, or it has become demolished and entirely fruitless due to the departure of its inhabitants or it may have become a meadow or bamboo-field.). In any case, the re-cultivation or development of barren lands is considered as one of the good deeds in Islam. In addition to serving as a means of ownership, the re-cultivation of barren lands will also lead to thawab.
It is related from the Holy Prophet (S): \”He who cultivates a barren land is entitled to the ownership of that land.\” Al-\’Imam al-Sadiq (as) is quoted as saying: \”Any group of people who develop and cultivate a land will have the preference and that land will belong to them.\”
In Islam, barren lands belong to Allah, the Prophet (S) and the Imams (as) (i.e., they belong to the Islamic government) and are considered asanfal (spoils).
Waste lands and barren lands can be cultivated and owned under the following specific conditions. From among the people who cultivate a land, whoever takes the lead will have the priority of ownership. The conditions are as follows:
(i) Permission from the Imam (as) or his deputy.
(ii) The land must not have been fenced with stones, or demarcated, or the like by anyone else in advance.
(iii) The land must not be within the limits of the property of others, such as the borders of rivers, the soil under the wells, and the boundaries of plantations.
(iv) The land must not be a free land, such as demolished mosques and endowments, or it must not be designed for the use of all Muslims, such as streets and roads.
Note: The development and cultivation of lands is based on a general understanding. Thus if the general understanding admits that a certain person has developed such and such a land, then that person\’s ownership will be established. Certainly, the development of a land varies according to various objectives, for instance, in agriculture, the development of a land is made by ploughing and grooving it and in the case of construction, it is done by constructing walls around the land.
(v) It is permissible for everybody to derive a benefit from the open mines – which require no excavation and exploitation – to the extent which meets their personal needs. If benefiting from such mines requires excavation, drilling, exploitation, and other technical operations that are required for the excavation of gold mines, copper mines, and the like, the person who has taken pains in embarking on the excavation and exploitation of the mine will have the right of ownership.
(vi) Large rivers are jointly owned by the Muslims. In the utilization of streams and the water of snowfalls and rain, pouring down from mountains, whoever is closer and nearer to them will have priority over others.
Luqtah (Picked Up Article)
Any article which is found and whose owner is not known is called luqtah (picked up article).
(i) Any item which has been found and whose owner is not known and whose price is less than the price of one mithqal of silver, can be kept and possessed by the one who finds it. If the picked up item is worth more than one mithqal of silver in value, it should not be picked up. In case it is picked up, the finder should search for its owner through the normal channels for one year. If the owner is found, he should give the item to him but if the owner is not found, the finder should give the item to the poor on behalf of its owner as sadaqah.
(ii) If an item is found in ruined places having no inhabitants or if it is found in caves, or in barren lands having no owner, it will belong to the finder.
But if it is found in a landed property, the finder should make enquiries from the land\’s former owners. The found item should be given to the former owners upon their presentation of some sort of identification to indicate that they had hidden it there; otherwise, the item will belong to the finder.
(iii) If an animal is found whose owner is not known, it will be treated asluqtah.
(iv) If a baby is found whose guardian is not known, it would be wajib kifa\’I (an obligatory duty of all Muslims but it suffices when performed by someone) for every Muslim to pick up and bring it up.
(v) If a stolen item is entrusted to a person, it will be considered as luqtah and it should be restored to its original owner, but it cannot be returned to the thief.