(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashta, Ameer of Hizb ut-Tahrir, to Questions from his Facebook Page Followers "Fiqhi")
To Ezzedine Ibn Abd al-Salam And to Nidal Nazzal
Questions:
Question from Ezzedine Ibn Abd al-Salam: Assalamu Alaikum Wa Rahmatullah Wa Barakatuh, our noble Sheikh. I hope this message finds you and your noble person in perfect health and wellbeing... To proceed: I hope you will kindly consider my question, which I will frame as follows: A buyer goes to a seller to buy a house or a piece of land, and the sale is in installments according to agreed-upon payments. The buyer takes the house or the land but does not own it completely until the last installment payment. The buyer performs almost all actions on what he bought except for selling it; for example, he cannot sell what he bought until the last installment. The question here is: "People turn to the youth of the Hizb asking them about this transaction due to their trust in the youth, but the answers from the youth vary between those who prohibit it and those who permit it as follows: Those who permit it justify the sale by introducing the concept of rahn (pledge/security) into the matter—meaning the contract is a pledge contract—or they permit it based on 'suspended contracts'. As for those who prohibit it, they argue that in a sale, whether immediate or deferred, there must be complete takhliyah (relinquishment/handing over), based on the consideration that private ownership (milkiyah fardiyah) is 'a Shari'ah ruling estimated by the substance or the benefit, which requires enabling the person to whom it is attributed to benefit from the thing and take compensation for it.' Due to the importance of this subject, our noble Sheikh, in dealing with people and the repeated questions to us, we raise this problem to your noble person. May Allah bless you. Wassalamu Alaikum Wa Rahmatullah Wa Barakatuh."
Question from Nidal Nazzal: Assalamu Alaikum. I hope for a clarification of the Shari'ah ruling on the following matter: Is it permissible for me to buy a car from someone in installments, and the seller stipulates not to register the car in my name or transfer it until the last installment is paid, knowing that the car is in my possession and I am using it? Is that permissible? May Allah bless you.
Answer:
Waalaikum Assalam Wa Rahmatullah Wa Barakatuh,
The questions from Brother Ezzedine and Brother Nidal are similar questions on the same subject; therefore, the answer is for both of them together:
This issue is known in fiqh (jurisprudence) by the name (rahn al-mab’i ala thamanih)—pledging the sold item against its price—meaning that the sold item remains pledged with the seller until the buyer pays the price. This issue does not arise if the seller and buyer are as the Messenger of Allah ﷺ described in the hadith narrated by Bukhari from Jabir bin Abdullah (ra):
رَحِمَ اللَّهُ رَجُلًا سَمْحًا إِذَا بَاعَ، وَإِذَا اشْتَرَى، وَإِذَا اقْتَضَى
"May Allah show mercy to a man who is kind when he sells, when he buys, and when he demands his due." (Bukhari)
However, they sometimes disagree over receiving the commodity first or paying the price first. Sometimes, after the sale contract, the seller may resort to withholding the goods—meaning pledging them with himself—until the price is paid. Hence, this issue arises, and it is a matter of disagreement among the jurists. Some permit it with conditions, some do not permit it, and others permit it in one case and not in another... and so on.
What I outweigh (arajjihu) after studying this issue is as follows:
First: The Type of Sold Item (Al-Mab’i):
- That the sold item is something measurable by volume (makil), weight (mawzun), or length (madhru’)... etc., such as selling rice, cotton, or fabrics.
- That the sold item is not measurable by volume, weight, etc., such as selling a car, a house, or an animal.
Second: The Price of the Sold Item:
- That it is haal (spot), meaning cash, such as buying the item for ten thousand in cash to be paid immediately.
- That it is mu'ajjal (deferred) for a period, such as buying the item for ten thousand to be paid after a year.
- That a portion of it is mu’ajjal (deferred) and a portion is mu’ajjal (deferred), such as buying the item and paying an initial payment of five thousand, and paying the other five thousand after a year, for example, or paying it in monthly installments.
Third: The Shari'ah ruling differs according to the variations mentioned above:
Case One: The sold item is not measurable by volume or weight... i.e., like selling a house, a car, or an animal:
If the price is cash: Meaning you buy a car for ten thousand in cash, and this is stipulated in the contract. In this case, it is permissible for the seller to withhold the goods—meaning they remain pledged with him—until the immediate price is paid according to the contract. The evidence for this is the noble hadith narrated by Tirmidhi, who described it as a hasan (good) hadith, from Abu Umama who said: I heard the Prophet ﷺ saying in the sermon during the year of the Farewell Pilgrimage:
العَارِيَةُ مُؤَدَّاةٌ، وَالزَّعِيمُ غَارِمٌ، وَالدَّيْنُ مَقْضِيٌّ
"A borrowed item must be returned, a guarantor is responsible, and a debt must be paid." (Tirmidhi)
Al-Za’im means the guarantor, gharim means the one who ensures/guarantees, and the point of inference in the hadith is his ﷺ saying, "and a debt must be paid." If the buyer takes the commodity before paying the price, he would have bought it on debt, and "the debt must be paid," meaning the priority is to pay the debt as long as the purchase was for cash. In other words, the price must be paid first as long as the price in the contract was spot cash. Al-Kasani says in Badai’ al-Sanai’ commenting on the hadith: (His ﷺ saying, "the debt must be paid": He ﷺ described the debt as being paid in a general or absolute sense. If the delivery of the price were delayed after the delivery of the sold item, this debt would not be "paid", and this contradicts the text.)
Accordingly, it is permissible for the seller to withhold the sold item until the buyer pays the price, and thus there would be no debt, and this agrees with the contract because the sale was not on credit but was for a cash price.
If the price is deferred: Such as buying a car for ten thousand to be paid after a year. In this case, it is not permissible to withhold the goods until the price is paid because the price is deferred according to the contract with the seller's consent. He is not allowed to withhold the goods to guarantee their price as long as he sold them for a deferred price; he has waived his own right to withhold the goods. Therefore, it is not permissible for him to withhold the goods; rather, he must deliver them to the buyer.
If the price is partly immediate and partly deferred: Such as buying the car with an initial payment of five thousand to be paid in spot cash, and the other five thousand to be paid after a year in one lump sum, or in installments at future dates. In this case, it is permissible for the seller to withhold the goods until the immediate payment is made. After that, he is not allowed to withhold the goods to collect the deferred payments, based on what we mentioned in points 1 and 2.
The conclusion is that it is permissible for the seller to pledge the goods against their immediate price; that is, if the sale contract is for an immediate price to be paid now, it is permissible for the seller to withhold the goods until the buyer pays the immediate price according to the sale contract.
Likewise, it is permissible for the seller to withhold the goods until the buyer pays the immediate portion of the payment according to the sale contract.
It cannot be asked here: How can the buyer pledge his goods before possessing them—meaning before owning them? This is because a pledge is only permissible for what is permissible to sell. Since the purchased commodity is not allowed to be sold until after it is possessed, based on the hadith of the Messenger of Allah ﷺ narrated by Al-Bayhaqi from Ibn Abbas who said: The Messenger of Allah ﷺ said to Attab bin Asid:
إني قد بعثتك إلى أهل الله، وأهل مكة، فانههم عن بيع ما لم يقبضوا
"I have sent you to the people of Allah and the people of Makkah, so forbid them from selling what they have not yet taken possession of."
And the hadith narrated by Al-Tabarani from Hakim bin Hizam who said: "O Messenger of Allah, I buy and sell many things; what is permissible for me and what is forbidden?" He said:
لَا تَبِيعَنَّ مَا لَمْ تَقْبِضْ
"Do not sell what you have not yet taken possession of."
These hadiths are explicit in prohibiting the sale of what they have not possessed. So how can the sold item be pledged before it is possessed?
This is not said because these two hadiths apply to sold items that are measurable by volume, weight, etc. However, if the sold item is something else, such as a house, a car, or an animal, it is permissible to sell it before possessing it, based on the hadith of the Messenger ﷺ narrated by Bukhari from Ibn Umar (ra), who said: "We were with the Prophet ﷺ on a journey, and I was riding a difficult young camel belonging to Umar. it was getting the better of me and going ahead of the people, so Umar would scold it and pull it back. Then it would go ahead again, and Umar would scold it and pull it back. So the Prophet ﷺ said to Umar: 'Sell it to me.' He said: 'It is yours, O Messenger of Allah.' He said: 'Sell it to me.' So he sold it to the Messenger of Allah ﷺ. Then the Prophet ﷺ said:
هُوَ لَكَ يَا عَبْدَ اللَّهِ بْنَ عُمَرَ، تَصْنَعُ بِهِ مَا شِئْتَ
'It is yours, O Abdullah bin Umar; do with it as you wish.'"
This is a disposal of the sold item by way of a gift before possessing it, which indicates the completeness of ownership of the sold item before possession, and indicates the permissibility of selling it because the seller's ownership of it was complete.
Accordingly, it is permissible to pledge the sold item before possessing it as long as it is permissible to sell it before possessing it. But this is only if the sold item is not among the things measurable by volume, weight, etc., such as a house, car, animal, and the like. In the case of a sale concluded with an immediate price, or in the case of an immediate down payment in the sale contract, it is permissible to pledge the sold item before possession until the immediate price or immediate payment is paid.
Case Two: The sold item is among those measurable by volume or weight... such as buying quantities of rice, cotton, or quantities of fabric: In this case, it is not permissible to withhold the sold item against its price, regardless of the nature of the price: whether it is spot, deferred in one lump sum, or in installments:
If the price is deferred, he is not allowed to withhold the goods as we explained above.
If the price is immediate, he is not allowed to withhold the goods—meaning pledging them—because it is not permissible to pledge measurable or weighable items before possessing them according to the hadith of the Messenger ﷺ mentioned above. The seller here, in the case of a sale for an immediate price, is between two options:
Either he sells the goods for an immediate price, delivers them to him, and is patient with him whether he pays the price immediately or after a while without pledging the goods... or he does not sell the goods; i.e., without any pledging of the goods in any case.
Accordingly, if the sale is concluded with an immediate or deferred price in the case where the sold item is something measurable by volume or weight, it is not permissible for the seller to pledge the goods with himself until the price is paid.
This is what I outweigh, and Allah is All-Knowing and All-Wise.
Your brother, Ata Bin Khalil Abu Al-Rashta
Link to the answer from the Ameer's Facebook page