for the purchaser to accept, in repayment of his advance, goods of a different kind from those contracted for, such as dates instead of wheat; to grant the seller more time to repay the advance; or to accept part of it and waive the remainder. All this is agreed upon. It is likewise agreed that he may not accept dinars in repayment of an advance made in dirhams, or anything comparable that he could not lawfully purchase with that advance under an advance-payment contract.
Whether he may accept anything belonging to the same category as the goods originally contracted for is disputed, with three positions. (The first) is that he may accept none of these: neither samrā’ wheat in place of samrā’ wheat, nor mahmūla wheat in place of samrā’ wheat, nor wheat in place of barley. This is the apparent meaning of the book. (The second) is that he may accept whichever of these he wishes; this is Ibn Lubāba’s position. (The third) is that he may accept mahmūla wheat in place of samrā’ wheat, or wheat in place of barley, but not mahmūla wheat in place of mahmūla wheat, nor samrā’ wheat in place of samrā’ wheat. This is al-Fadl’s position.
If, however, the contract’s invalidity is disputed, it is unanimously agreed that, before a judicial ruling rescinding it, he may not accept goods of a different kind from those contracted for, grant the seller more time to repay the advance, or accept part of it and waive the remainder. According to those who regard the contract as valid, all these arrangements constitute selling food before taking possession of it. If he wishes to accept something belonging to the same category as the goods contracted for, the three positions mentioned above concerning repayment after a judicial ruling in cases unanimously held to be unlawful apply.
‘Abd al-Haqq held that, once an advance-payment contract has been judicially rescinded, the purchaser may accept dinars in repayment of an advance made in dirhams. This is far-fetched and incorrect, and should not be counted among the recognized positions in the disagreement. Ashhab regards rescission by mutual agreement as equivalent to judicial rescission, but Ibn al-Mawwāz considered this view weak.
Section
Advance-payment contracts are impermissible for houses and land because such contracts can only be concluded on the basis of a description. A description of houses and land must specify their location; once their location is specified, they become individually identified properties. An advance-payment contract for them thus resembles purchasing from one man a house belonging to another, on condition that the seller acquire it from its owner for the purchaser. This involves unlawful and impermissible uncertainty: the seller does not know how much it will cost him to acquire it, and he may be unable to acquire it at all. If he cannot acquire it, he returns the purchaser’s advance. The transaction is therefore a sale in one eventuality and a loan in another—and this is a loan that yields a benefit.