Ahmad, and one view in the school of al-Shāfiī. This does not apply to sales by conduct involving assets of substantial value, since there is no need for it in such cases and it is not customary.
The third opinion is that contracts are concluded through anything that indicates their intended purpose, whether words or actions, and through anything people regard as a sale or lease. If people’s conventions concerning words and actions differ, the contract is concluded within each community through whatever formulations and actions they mutually understand. There is no fixed criterion for this in revealed law or language. Rather, it varies with people’s conventions, just as their languages vary. The expressions used for sale and lease in the language of the Arabs are not those used in the languages of the Persians, Romans, Turks, Berbers, or Abyssinians. Indeed, expressions may differ even within a single language.
People are not required to adhere to any particular convention in their transactions, nor are they forbidden to contract in a manner different from that used by others, provided that the manner they use indicates their intended purpose, although certain forms may be recommended. This is the position generally indicated by Mālik’s legal principles and the apparent position of Ahmad’s school. Hence, according to the apparent position of his school, a sale by conduct is valid without qualification. This applies whether one party speaks and the other acts—as when one says, “Take this for some dirhams,” and the other takes it; or one says, “Give me bread for some dirhams,” whereupon the other gives him the bread, which he takes—or neither party speaks, as when someone lays down the price and takes a bunch of greens, a sweet, or something else, as most people commonly transact. It also applies when an item is set out for someone so that he may leave something in exchange for it, and, upon leaving an acceptable countervalue, he takes the item, as merchants report to be the custom of some people in the East. Thus, whatever people regard as a sale is a sale. The same applies to gifts: whatever people regard as a gift [is a gift, such as a present].