or to lose; such uncertainty places the transaction on the same footing as a wager.
For this reason the jurists require that, in every sale, both the price and the object of sale be precisely known, because ignorance of either side of the contract falls under gharar.
Benefits
- Gharar that necessity justifies
Shaykh al-Islām Ibn Taymiyyah said: “The Lawgiver granted a dispensation in those forms of gharar that people need, such as selling real estate together with its unseen foundations; selling a pregnant animal; selling fruit once its soundness has become apparent; and selling commodities whose benefit lies hidden in the earth—like onions, radishes, and the like—before they are pulled up.”
The jurists’ approaches to this differ.
Abū Ḥanīfah and al-Shāfiʿī are the strictest on the issue of gharar, and the categories that al-Shāfiʿī prohibits are more numerous than those of Abū Ḥanīfah.
Mālik’s view is the soundest here: he permits the sale of these items and of everything that people require, or in which the element of gharar is slight. Thus he allows the bulk sale of vegetable beds and the sale of what is still hidden underground—such as carrots, radishes, onions, and the like—and Aḥmad’s position is close to his.
People need these kinds of sales, and the Lawgiver does not forbid what people require merely because it contains some measure of gharar. This is the strongest opinion, supported by the predominant practice of the early generations, and people’s livelihoods cannot function properly without it.
Anyone who adopts an excessively rigid stance, prohibiting whatever he deems to be gharar, will inevitably be forced to permit what Allah has forbidden, either by abandoning the school he follows in this matter or by resorting to legal stratagems—and the harm of prohibition is not removed by such stratagems.